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ELRCDismissedCause No. 2037 of 2014· [2015] KEELRC 697 (KLR)

Shem Evans Ohito v Kenya Hospital Association Ltd t/a Nairobi Hospital [2015] KEELRC 697 (KLR)

Employment and Labour Relations Court
15 June 2015
3,503 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Respondent/Applicant, Kenya Hospital Association Limited trading as The Nairobi Hospital, filed a Notice of Motion dated 19th March 2015 in a claim by its former employee, seeking consolidation of four industrial causes (2037, 1575, 1804 and 2140 of 2014) with Cause 2037 of 2014 as the holding file; a reference to the Honourable the Chief Justice to empanel a panel of judges outside the Employment and Labour Relations Court to hear constitutional issues raised in its counterclaims; a stay of the four causes; and joinder of the Attorney General, COTU and FKE as interested parties. The Applicant contended that awards of the maximum 12 months' compensation under section 49(1)(c) of the Employment Act were lopsided and unconstitutional, and that all ELRC judges were biased towards employees. The Claimants opposed, raising preliminary objections, notably that fundamental rights under the Bill of Rights can be enforced only against the state and state organs, not between private individuals, and that the ELRC was competent to determine any constitutional issues. The court, per Nzioki wa Makau J, held that the ELRC, having the status of the High Court, can determine constitutional issues incidental to employment disputes, relying on USIU v Attorney General. It held that compensation under section 49(1)(c) is discretionary ('may'), not mandatory, and that a damages award cannot amount to a breach of fundamental rights. The application was dismissed with costs to the Claimants in causes 1575, 2037 and 1804 of 2014.

Key legal issues

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01

Whether the ELRC can determine constitutional issues arising in employment disputes without referral to the High Court or an empanelled bench

Holding

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.

Reasoning

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.

p. 5
02

Whether the discretionary award of compensation under section 49(1)(c) of the Employment Act raises a constitutional issue

Holding

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.

Reasoning

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.

p. 4
03

Whether the preliminary objections were proper objections in law

Holding

Yes - the preliminary objections were proper objections in terms of Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The Notice of Motion application by the Respondent/Applicant dismissed
  3. 3.Costs awarded to the Claimants in causes 1575 of 2014, 2037 of 2014 and 1804 of 2014

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(a), (d) & (e)
  • Constitution of Kenya, 2010Article 165(3)(b), (d)(i), (ii) & 4
  • Constitution of Kenya, 2010Article 162(2)
  • Constitution of Kenya, 2010Article 21
  • Constitution of Kenya, 2010Article 22 and 22(2)(c)
  • Employment Act, 2007section 49(1)(c); preamble
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 3, 4, 7, 8 & 17
  • Industrial Court (Procedure) Rules, 2010Rule 23

Cases cited (7)

  • Odds and Ends v Attorney General
  • Rose Mambo v Limuru Club (Rose Wangui Mangu & 2 Others v Limuru County Club)
  • Gladys Boss Shollei v JSC
  • Uhuru Kenyatta v The Star Publications
  • Chelimo v Officer Commanding GSU Camp
  • United States International University (USIU) v Attorney General
    [2012] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    [1969] EA 696
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

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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, "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.