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ELRCPartially AllowedNot stated in the judgment text provided· [2015] KEELRC 609 (KLR)

Roselyn Sisiali Wekesa v Konrad Adenauer Foundation & 5 others [2015] KEELRC 609 (KLR)

Employment and Labour Relations Court
14 July 2015
NMNzioki wa Makau
1,160 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled it could only handle the redundancy claim and transferred the wider suit to the High Court.

What this practically means

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Executive summary

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The Interested Party filed a Notice of Motion dated 16th February 2015, together with a preliminary objection, seeking striking out of the Claimant's Memorandum of Claim dated 1st December 2014 and removal of the Interested Party from the proceedings, contending the suit was an abuse of process and that the Employment and Labour Relations Court lacked jurisdiction over claims touching on immigration, taxation and corruption. The application was supported by the affidavit of Andrea Ostheimer de Sosa, who deponed that the Claimant had been declared redundant after restructuring and that no employment relationship existed between the Claimant and the 2nd to 5th Respondents or the Interested Party. The Claimant opposed, arguing she had a stake-based interest framing and that the issues arose in an employment arena, and that the application was defective for late response under Rule 13(1). The court framed one issue: whether it had jurisdiction over the claim. Applying Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd, it held jurisdiction is everything and must be raised and decided at the earliest opportunity. It found the Claimant was using an unfair termination claim as a guise to mount a collateral attack on her employer and others for infractions of various statutes, and that the court could not assume jurisdiction where statute had created competent bodies. The suit was transferred to the High Court, Constitutional and Human Rights Division, for directions on 21st July 2015, with leave to pursue the redundancy/employment issue separately in the ELRC. There was no order as to costs.

Key legal issues

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01

Jurisdiction of the Employment and Labour Relations Court over a claim mixing employment and non-employment matters

Holding

The court lacked jurisdiction over the bulk of the claim, which was a collateral attack on the employer and others for infractions of immigration, tax and anti-corruption laws properly belonging to the High Court; only the redundancy aspect was for the ELRC.

Reasoning

Relying on Owners of the Motor Vessel 'Lillian S', the court held jurisdiction is determined by statute and must be resolved at the earliest opportunity. The claim, though dressed as unfair termination, principally attacked parties with whom no employment relationship existed for infractions of other statutes. Since competent bodies exist for those issues, the court downed tools and transferred the suit to the Constitutional and Human Rights Division, reserving only the redundancy question for the ELRC.

p. 2
02

Employer-employee relationship as the foundation of ELRC jurisdiction

Holding

There was no employment relationship between the Claimant and the 2nd to 5th Respondents or the Interested Party, so claims against them fell outside the court's jurisdiction.

Reasoning

The Interested Party's affidavit deponed that the court's jurisdiction covers disputes arising from an employment relationship and reliefs determining rights between employee and employer. The court accepted that no employment relationship existed between the Claimant and the other respondents/interested party, making the suit, in substance, a collateral attack on her employer rather than an employment dispute.

p. 2

Legal principles established

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  • A court without jurisdiction must cease proceedings immediately
  • A court cannot assume jurisdiction in the first instance where statute has created competent bodies to deal with the issues

Court orders

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  1. 1.The preliminary objection allowed to the extent that the suit is transferred to the High Court, Constitutional and Human Rights Division
  2. 2.The suit to be placed for directions on 21st July 2015 before the Presiding Judge of the Division
  3. 3.The Claimant may move the Employment & Labour Relations Court for determination of the employment/redundancy dispute
  4. 4.No order as to costs

Authorities

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Legislation

  • Industrial Court ActSections 3, 12(1), (2), (3)(viii)
  • Industrial Court (Procedure) RulesRule 16; Rule 13(1)
  • Ethics and Anti Corruption Commission ActNot specified
  • Income Tax ActNot specified
  • Penal CodeNot specified
  • Immigration ActNot specified
  • Employment ActNot specified
  • Constitution of KenyaNot specified

Cases cited (1)

  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] KLR 1
Jurisdiction invoked
Sections 3, 12(1), (2) and (3)(viii) of the Industrial Court Act 2011 and Rule 16 of the Industrial Court (Procedure) Rules

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, "Roselyn Sisiali Wekesa v Konrad Adenauer Foundation & 5 others [2015] KEELRC 609 (KLR)", Case Analysis (2015). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/609/eng@2015-07-14

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