Shem Evans Ohito v Kenya Hospital Association Ltd t/a Nairobi Hospital [2015] KEELRC 697 (KLR)
The bottom line
#Kenya's Employment Court confirmed it can decide constitutional questions in job disputes without passing them to the High Court or Chief Justice.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC can determine constitutional issues arising in employment disputes without referral to the High Court or an empanelled bench
The ELRC, having the status of the High Court under Article 162(2), can determine constitutional issues incidental to employment and labour matters; referral to the Chief Justice was unwarranted.
Relying on Majanja J.'s decision in USIU v Attorney General, the court held that constitutional interpretation arising within an employer-employee dispute is incidental to the ELRC's core jurisdiction. The court agreed there was no basis to refer any constitutional issue arising in a matter before it to the High Court, and declined the invitation to refer the counterclaim issues to the Chief Justice for empanelment of a bench.
Whether the discretionary award of compensation under section 49(1)(c) of the Employment Act raises a constitutional issue
No - the word 'may' in section 49(1)(c) makes the award discretionary and non-mandatory; an award of damages cannot constitute a breach of fundamental rights.
The court analysed section 49(1)(c), observing the key word is 'may' - compensation need not be awarded and must not exceed 12 months gross salary. It rejected the submission that judicial discretion in awarding compensation could be elevated to a breach of fundamental rights, calling the argument flawed and incapable of fomenting a reference to the Chief Justice.
Whether the preliminary objections were proper objections in law
Yes - the preliminary objections were proper objections in terms of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd.
The Claimants raised preliminary objections contending that fundamental rights can be enforced by a private individual only against the state, not against another private individual, and that there was no basis for referral to the Chief Justice. The court accepted these as proper preliminary objections within the Mukisa Biscuits formulation and took them as responses to the motion.
Legal principles established
#- The Employment and Labour Relations Court, having the status of the High Court, is the proper forum for employment disputes even where interpretation of the Constitution is incidental to the dispute
- An award of compensation under section 49(1)(c) of the Employment Act is discretionary and does not amount to a breach of fundamental rights
Court orders
#- 1.The invitation to refer the dispute to the Chief Justice to empanel a bench to hear the issues raised in the Respondent's counterclaim declined
- 2.The Notice of Motion application by the Respondent/Applicant dismissed
- 3.Costs awarded to the Claimants in causes 1575 of 2014, 2037 of 2014 and 1804 of 2014
- Jurisdiction invoked
- Articles 159(2)(a), (d) & (e); 162(2) and 165(3)(b), (d)(i), (ii) & 4 of the Constitution; Rules 3, 7, 8 & 17 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013; Rule 23 of the Industrial Court (Procedure) Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shem Evans Ohito v Kenya Hospital Association Ltd t/a Nairobi Hospital [2015] KEELRC 697 (KLR)", Case Analysis (2015). Cause No. 2037 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/697/eng@2015-06-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.