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ELRCDismissedCause No 154 of 2015· [2016] KEELRC 666 (KLR)

George Joshua Okungu v Kenya Pipeline Company Limited & 3 others [2016] KEELRC 666 (KLR)

Employment and Labour Relations Court
2 September 2016
ANAbuodha Jorum Nelson
1,611 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court can hear all claims tied to a dismissal—including defamation and malicious prosecution—even against parties who weren't the employer.

What this practically means

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Executive summary

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By an application dated 12th May 2015, the 4th respondent sought to strike out the claimant's suit against it on the ground that there was no employer-employee relationship between the claimant and that respondent, so the claims for malicious prosecution, defamation and discrimination were triable by the High Court and not the ELRC. Counsel for the 4th respondent relied on the Court of Appeal decision in Kariza Chengo, arguing that judges of specialised courts can only exercise the jurisdiction of the courts to which they are appointed. Counsel for the claimant countered that the Court's jurisdiction under Article 162(2) and section 12 of the Industrial Court Act extends to disputes arising out of or tied to employment and labour relations, including constitutional and civil claims, and that joint tortfeasors may be sued jointly. The Court, per Abuodha Jorum Nelson J, acknowledged the uncertainty created by courts of equal status but held that its jurisdiction was attracted by the employment-related factual background of the claims - the termination of employment by the 1st respondent allegedly triggered by investigations and prosecution mounted by the other respondents. Relying on its own decision in Wilbert Kipsang Choge and the Australian accrued jurisdiction cases of Dean Patty and Philip Morris, the Court held that once seized of the employment aspect it has full authority to determine the whole matter, and that splitting such claims among equal-status courts would create duplicity and waste judicial time. The objection was overruled and the application dismissed with costs.

Key legal issues

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01

Whether the ELRC can determine claims against a party with whom the claimant had no employer-employee relationship

Holding

Yes - jurisdiction is attracted by the employment-related factual background and extends to the whole matter, including accrued civil claims against other parties

Reasoning

The main claim concerned termination of services by the 1st respondent; the claims against the 2nd, 3rd and 4th respondents arose from investigations and prosecution said to have triggered that termination. Applying the accrued jurisdiction doctrine from Australian authority and its own precedent in Wilbert Kipsang Choge, the Court held that splitting claims with similar factual background among equal-status courts would create duplicity and waste judicial time.

p. 3
02

Whether joint tortfeasors must be sued in separate courts

Holding

No - joint tortfeasors may be sued jointly or severally, and requiring separate suits would abuse process and fetter justice

Reasoning

Counsel for the claimant relied on Kenya Commercial Bank v. Titus Kilonzo for the proposition that joint tortfeasors may be sued jointly or severally. The Court accepted that compelling the claimant to file separate suits in separate courts would amount to abuse of the court process and a fetter on the pursuit of justice.

p. 2

Legal principles established

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  • Courts of equal status to the High Court (ELC and ELRC) are properly clothed with jurisdiction to determine consequential or accrued aspects of a dispute before them which would otherwise be determined by the High Court
  • Once jurisdiction is attracted by the employment-related aspect of a matter, the Court has authority to adjudicate the whole matter
  • The ELRC's jurisdiction is not confined to employer-employee disputes

Court orders

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  1. 1.The objection is overruled
  2. 2.The application dated 12th May 2015 is dismissed with costs

Authorities

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Legislation

  • Constitution of KenyaArticle 162(1), 162(2), 162(3), 165(5)
  • Industrial Court Actsection 12
  • Interpretation and General Provisions Actsection 43
  • Employment and Labour Relations Actnot specified

Cases cited (10)

  • Kariza Chengo, Jefferson Kalama Kenga & Kitsao Chara Ngati v. Republic
    (2015) eKLR
  • S.K. Macharia & Anor v. KCB & 20 Others
    (2012) eKLR
  • USIU Vs. The AG
    (2012) eKLR
  • Prof. D. N. Mugedi Vs. Kenyatta University & 3 Others
    Civil Appeal No. 6 of 2012
  • TSC v. KNUT
    Petition No. 72 of 2015
  • Dr. Anne Kinyua v. Nyayo Tea Zone
    (2012) eKLR
  • Kenya Commercial Bank v. Titus Kilonzo and 24 others
    (2006) eKLR
  • Wilbert Kipsang Choge & 6 Others v. Communication Authority of Kenya & Another
    (2016) eKLR
  • Dean Patty v. Commonwealth Bank of Australia
    (2000) FCA 1072
  • Philip Morris Inc v. Adam P. Brown Male Fashions Ltd
    (1981) 148 CLR
Jurisdiction invoked
Article 162(2) of the Constitution and section 12 of the Industrial Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Joshua Okungu v Kenya Pipeline Company Limited & 3 others [2016] KEELRC 666 (KLR)", Case Analysis (2016). Cause No 154 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/666/eng@2016-09-02

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