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ELRCDismissedNairobi HCCC No. 526 of 2013 (referred to the Industrial Court)· [2014] KEELRC 546 (KLR)

Bishop Bakari Kea v Evangelical Lutheran Church In Kenya (ELCK) through Walter Obare Omwanza & 2 others [2014] KEELRC 546 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
12 February 2014
MOMAUREEN ONYANGO
1,640 words in judgment
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The bottom line

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Kenya's Employment Court ruled that an elected bishop paid by his church counts as an employee and can sue the church in that court.

What this practically means

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Executive summary

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The Claimant, a Bishop of the Central Diocese of the Evangelical Lutheran Church in Kenya, filed suit in the High Court (Nairobi HCCC No. 526 of 2013). Justice Onyancha, in chambers, determined the matter was an employment dispute and referred it to the Industrial Court. The Respondents filed a preliminary objection on two grounds: first, that the Industrial Court lacked jurisdiction because the Claimant was an elected official, not an employee, there being no employment relationship with the Respondents; and second, that the Claimant had rushed to court before exhausting internal church dispute resolution mechanisms under the church constitution. Relying on Owners of the Motor Vessel 'Lillian' v Caltex Oil, Hinga v PCEA and Kimani Ngunjiri, the Respondents sought dismissal with costs. The Claimant, relying on Mukisa Biscuit Co v Westend Distributors, argued the exhaustion ground required ascertainment of facts and could not be raised as a preliminary objection, and that if jurisdiction were wanting the matter should revert to the High Court. The court held that the Employment Act does not concern itself with how employment is created; a bishop elected from among salaried pastors is presumed to earn a salary and is therefore an employee, conferring jurisdiction. On exhaustion, the court noted no appealable decision had been communicated and that the respondents' own compliance with the constitution was in question; the issue required evidence. The authorities relied on by the Respondents were distinguished. The preliminary objection was dismissed with costs.

Key legal issues

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01

Jurisdiction of the Industrial Court over a claim by an elected bishop against church organs

Holding

The Industrial Court has jurisdiction because the bishop is an employee within the meaning of the Employment Act and the Industrial Court Act

Reasoning

The court reasoned that employment is defined not by how the relationship arises but by work done for wages or salary. The church constitution provides for payment of pastors' salaries from church funds; the bishop, elected from among salaried pastors and performing duties defined in the constitution, is presumed to earn a salary. Election to office does not preclude employee status, distinguishing the respondents' MP analogy.

p. 3
02

Exhaustion of internal church dispute resolution mechanisms and suitability of that ground for a preliminary objection

Holding

The ground is not fit for determination as a preliminary objection; it requires evidence, and the respondents' own non-compliance with the church constitution undermines the objection

Reasoning

The court observed that no decision capable of appeal had been communicated to the Claimant; if the decision was arrived at unconstitutionally, the respondents cannot rely on the appeal mechanism to the General Assembly. The authorities relied on by the respondents were distinguished as concerning discipline of members or party property, not breach of the constitution by those sued. The issue required factual inquiry and could not be resolved on a pure point of law.

p. 3

Legal principles established

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  • The Employment Act is not concerned with the manner in which the employment relationship was created; what matters is work done for wages or salary
  • An elected church official remunerated by the church may be an employee within the meaning of the Employment Act and the Industrial Court Act
  • A party who has not complied with its own constitution cannot insist on exhaustion of internal dispute mechanisms, and that question may require evidence

Court orders

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  1. 1.Dismissal of the Preliminary Objection with costs

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162(2)
  • Industrial Court Act 2011Section 12
  • Employment ActDefinition of employee
  • Civil Procedure RulesOrder 1 Rule 8
  • Constitution of the Evangelical Lutheran Church in KenyaArticles X(19), X(23)(1), XXIII, XXII(16), XXVIII(c), IX(6)

Cases cited (5)

  • Owners of the Motor Vessel “Lillian” v Caltex Oil (Kenya)
    (1989) KLR 1
  • Hinga & Another v PCEA through Rev. Dr. Njoya & Another
    (1986) KLR 316
  • Kimani Ngunjiri v David Manyara
    eKLR
  • Mukisa Biscuit Co v Westend Distributors Ltd
    (1969)
  • Mayfair Services & Investments Ltd v Hotel Sirikwa Ltd
    Milimani HCC No. 427 of 2004
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya 2010 and Section 12 of the Industrial Court Act 2011

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, "Bishop Bakari Kea v Evangelical Lutheran Church In Kenya (ELCK) through Walter Obare Omwanza & 2 others [2014] KEELRC 546 (KLR)", Case Analysis (2014). Nairobi HCCC No. 526 of 2013 (referred to the Industrial Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/546/eng@2014-02-12

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