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Court of AppealPartially AllowedCivil Appeal 161 of 2019· [2022] KECA 439 (KLR)

Kenya Ports Authority & another v Chamba

Court of Appeal
18 March 2022
SKS. Gatembu KairuPNP. NyamweyaJLJ. Lesiit
1,845 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Court of Appeal at Mombasa (SG Kairu, P Nyamweya & JW Lessit, JJA) allowed an appeal by the Kenya Ports Authority and the Registered Trustees of the Kenya Ports Authority Pension Scheme against a ruling of the ELRC (Ndolo, J.) which had overruled their preliminary objection challenging the ELRC's jurisdiction. The respondent, a retired KPA employee, had claimed a declaration of exclusive possession of a pension scheme house and an injunction, pleading that she was a protected tenant following the failure to grant a formal lease. The appellants contended the dispute was a tenancy matter outside Section 12(1) of the Employment and Labour Relations Court Act, and that pension disputes vest first in the Chief Executive Officer under Section 46 of the Retirement Benefits Act. The Court of Appeal agreed with the learned Judge that the dispute was not between a pensioner and a pension scheme and that the Section 46(1) exhaustion mechanism did not apply. However, it held the Judge erred in failing to uphold the objection that the claim fell outside Section 12(1): the claim was plainly a tenancy issue, and the respondent's retired-employee status did not alter the dispute's character. Applying Supreme Court authority that jurisdiction is confined to what the Constitution and statute confer, the Court set aside the ruling, upheld the preliminary objection, struck out the respondent's suit with costs in the lower court to the appellants, and ordered each party to bear their own costs of the appeal.

Key legal issues

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01

Whether a tenancy dispute between a retired employee and her former employer/pension scheme falls within the ELRC's jurisdiction under Section 12(1)

Holding

It does not; the ELRC's jurisdiction is limited to employment and labour relations disputes, and the characterisation of the claim as a tenancy issue ousts that jurisdiction.

Reasoning

The court examined Section 12(1) of the ELRC Act, which lists exhaustively the disputes the ELRC may hear, all relating to employment and labour relations. The respondent's own pleadings characterised her claim as one of a protected tenant seeking exclusive possession and an injunction, not an employment dispute. The fact that she was a retired employee of the 1st appellant did not alter the dispute's character. Citing Supreme Court authority, the court held jurisdiction cannot be assumed beyond statutory conferral.

p. 4
02

Whether the dispute is subject to the exhaustion mechanism under Section 46(1) of the Retirement Benefits Act

Holding

No; the dispute is not between a pensioner and a pension scheme relating to scheme management, so Section 46(1) does not apply.

Reasoning

The court agreed with the learned Judge below that the dispute does not relate to the management of the pension scheme but to a tenancy created by the 1st appellant and later assigned to the 2nd appellant. Accordingly, the exhaustion provision under Section 46(1) of the Retirement Benefits Act was correctly held inapplicable, but that did not confer ELRC jurisdiction.

p. 3

Legal principles established

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  • The ELRC's jurisdiction under Section 12(1) is confined to employment and labour relations disputes; a purely tenancy dispute between a former employee and an employer/pension scheme does not fall within it, even where the claimant was an employee.
  • A court's jurisdiction flows from the Constitution or legislation and cannot be exceeded.
  • The first step in a jurisdictional inquiry is to determine the nature of the dispute.

Court orders

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  1. 1.Ruling of the ELRC delivered on 21st February 2019 set aside
  2. 2.Substituted with an order upholding the appellants' objection that the ELRC lacks jurisdiction under Section 12(1) of the Employment and Labour Relations Act
  3. 3.Respondent's suit before the ELRC struck out, with costs in the lower court to the appellants
  4. 4.Each party to bear their own costs of the appeal

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(1)
  • Retirement Benefits ActSection 46(1)
  • Constitution of KenyaArticle 162(2)
  • Constitution of KenyaArticle 162(3)
  • Employment Act

Cases cited (4)

  • Erick V.J. MakhoKha vs. Lawrence Sagini & 2 others
    [1994] eKLR
  • Albert Chaurembo Mumba & 7 others as registered Trustees of Kenya Ports Authority Pensions Scheme vs. Maurice Munyao & 148 others
    [2019] eKLR

    Jurisdiction over pension matters vests in the Chief Executive Officer in the first instance; first port of call is to determine the nature of the dispute

  • Benson Ambuti Adega & 2 others vs. Kibos Distillers Limited & 5 others
    [2020] eKLR
  • Samuel Kamau Macharia and another vs. Kenya Commercial Bank and 2 others
    S.C. Civil Application No. 2 of 2011 [2012] eKLR

    A court's jurisdiction flows from the Constitution or legislation and cannot exceed what is conferred by law

On appeal from
Employment & Labour Relations Court at Mombasa
ELRC Cause No. 496 of 2018
Jurisdiction invoked
Section 12(1) of the Employment and Labour Relations Court Act, enacted pursuant to Article 162(3) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kenya Ports Authority & another v Chamba", Case Analysis (2022). Civil Appeal 161 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/439/eng@2022-03-18

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.