The Employment and Labour Relations Court on Tuesday morning dismissed an application by The Parliamentary Service Commission seeking to strike out National Assembly Clerk Michael Sialai’s case.
PSC had asked the court to dismiss Okiya Omtatah’s case where he is challenging the reappointment of Sialai on contract without the approval of the House after he attained the mandatory age of 60 years.
In her ruling, Justice Monica Mbaru has said the court has jurisdiction to hear the matter filed by Omtatah.
“The court finds that recruitment is a proper element of employment and therefore the court has jurisdiction in view of the subject matter and remedies sort in the petition are declarations,” the judge ruled.
PSC had argued that the court had no jurisdiction whatsoever to handle the matter.
The court noted that the law requires that nomination of a person for the appointment of a clerk for each house of parliament pursuant to Article 28 of the Constitution shall be done through an open transparent and competitive recruitment.
“Whereas the court should not micromanage any entity public or private in its affairs where a process is challenged as being a clear violation of an applicant’s fundamental rights and freedoms, the jurisdiction of the court is invoked,” she ruled.
Justice Mbaru further held that Omtatah meets the threshold of Article 258 and 22 of the Constitution and cannot be faulted for instituting the proceedings.
The court further said that Omtatah is well within his right to commence the said proceedings against PSC.
PSC had asked the court to strike out the case because Omtatah had illegally obtained information that was ordinarily privileged and he did not have the leave of court to use it.
However, the court declined to do so ruling that the said allegations were a matter of fact that can only be dealt with at the full hearing.
“That’s strictly a matter of fact which can only be addressed upon an evaluation of such matter not at this instance because that would deny court a fair chance to examine each party on the allegations,” Judge Mbaru ruled.
PSC had also said argued that the National Assembly was not a party to the proceedings and the case should be dismissed on that ground.
But, the court ruled that a petitioner must be allowed to decide who is a respondent in his own case so Omtatah can’t be faulted for not including the National Assembly in his petition.
