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ELRCDismissedNot stated in judgment (Memorandum of Claim dated 9th May, 2016)· [2017] KEELRC 1663 (KLR)

Daniel Kipkoech Kenduiywo v County Government of Uasin Gishu [2017] KEELRC 1663 (KLR)

Employment and Labour Relations Court of Kenya
21 February 2017
DMD. K. Njagi Marete
1,647 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 job-related disputes even when no actual employment relationship exists between the parties involved.

What this practically means

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Executive summary

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The County Government of Uasin Gishu filed a preliminary objection dated 19th January 2017 in response to a Memorandum of Claim dated 9th May 2016, in which the claimant described himself as an employee of the respondent seconded to it with effect from 1st January 2014. The respondent argued, first, that the court had no jurisdiction because there was no employment relationship between the parties, the jurisdiction of the Employment and Labour Relations Court being pegged on such a relationship; and secondly, that the claim was fatally defective for non-disclosure of a reasonable cause of action against the County Government and bad for misjoinder, since absorption of staff is the province of the County Public Service Board. The objection was heard on 15th February 2017. The court held that its jurisdiction under Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, 2014 is not confined to employer/employee relationships but extends to all disputes relating to employment and labour relations. It applied and adopted the reasoning in Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Services Company, Republic v Clerk County Assembly of Baringo ex parte Kamket, and Naqvi Syed Qmar v Paramount Bank. Since the dispute as framed in the Memorandum of Claim touched on employment and labour relations, jurisdiction was established. The preliminary objection was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether jurisdiction of the Employment and Labour Relations Court is pegged on the existence of an employer/employee relationship

Holding

Jurisdiction is not confined to employer/employee relationships; it extends to all disputes relating to employment and labour relations under Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, 2014

Reasoning

The court relied on post-Constitution authorities holding that section 12 of the Employment and Labour Relations Court Act is inclusive, not exclusive, and that the Constitution did not envisage a court restricted to contract-of-service disputes. Personal jurisdiction extends to all persons implicated in an employment and labour relations dispute, and recruitment-related disputes fall within the subject-matter jurisdiction. The contest in the Memorandum of Claim touches on employment and labour relations, so jurisdiction is established.

p. 2

Legal principles established

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  • The jurisdiction of the Employment and Labour Relations Court is not confined to employer/employee relationships but extends to all disputes relating to employment and labour relations

Court orders

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  1. 1.The preliminary objection dated 19th January, 2017 is dismissed
  2. 2.Each party to bear their own costs of the preliminary objection

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(1), 12(2), 12(3)(iv)
  • Employment Actdefinitions of employer, employee and contract of service
  • Constitution of KenyaArticle 162(2)(a), 165(3)(b), 165(5)(b), 22(3), 23, 258
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 2
  • Trade Dispute ActCap 234

Cases cited (6)

  • Trusted Society of Human Rights Alliance vs Nakuru Water and Sanitation Services Company & Another
    (2013) eKLR
  • Republic v Clerk County Assembly of Baringo ex parte William Kassait Kamket
    (2015) eKLR
  • Naqvi Syed Qmar v Paramount Bank Limited & another
    (2015) eKLR
  • Hakika Transporters Services Limited v. Kenya Long Distance Truck Drivers and Allied Workers Union
    (2015) e-KLR
  • Beatrice Achieng Osir v. Board of Trustees Teleposta Pension Scheme
  • George Onyango Akuti v. G4S Security Services Limited
    (2013) e-KLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, 2014

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Daniel Kipkoech Kenduiywo v County Government of Uasin Gishu [2017] KEELRC 1663 (KLR)", Case Analysis (2017). Not stated in judgment (Memorandum of Claim dated 9th May, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1663/eng@2017-02-21

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