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ELRCDismissedNot stated in judgment (Employment and Labour Relations Court claim; application dated 9th December 2014)· [2017] KEELRC 1955 (KLR)

Andrew Tubei Mulati v Enock Wamalwa Kibunguchy & another [2017] KEELRC 1955 (KLR)

Employment and Labour Relations Court
26 January 2017
2,244 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Kisumu (Maureen Onyango, J) on an application dated 9th December 2014 by the 1st Respondent, Hon. Dr. Enock W. Kibunguchy MP for Likuyani, seeking leave to enjoin the Parliamentary Service Commission (PSC) as co-respondent as the alleged proper employer of the Claimant, a former clerk at the Likuyani Constituency Office, and to have the MP removed as respondent. The applicant, supported by the affidavit of M. M. Yakulula, Constituency Office Manager, argued that the MP executed the employment contract on behalf of the PSC. The Claimant opposed, insisting he was employed by the MP, that his salary was paid by the Likuyani Constituency Fund, and that he had no relationship with the PSC. The PSC, as 2nd Respondent, opposed via grounds of opposition, the affidavit of Agnes Kamoni and written submissions by Mr. Mwendwa, arguing it only provided a standard contract format, released funds for salaries and audited expenditure, and had no privity of contract with constituency staff. The court examined the contract, warning letters and the Parliamentary Service (Constituency Offices) Regulations, 2005, and held that the PSC's mandate under Article 127 does not extend to staffing MPs' constituency offices. Relying on the Court of Appeal decision in Parliamentary Service Commission v George Okoth Owuor, the court found no merit in the application and dismissed it with no orders for costs.

Key legal issues

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01

Identity of the Claimant's employer

Holding

The 1st Respondent, Hon. Dr. Enock W. Kibunguchy MP, was the employer, not the Parliamentary Service Commission

Reasoning

The contract was signed by the MP in his personal capacity as 'MP LIKUYANI'; warning and dismissal letters were issued by the Constituency Office Manager and copied to the MP, not the Commission. The Regulations define staff as employees of a member. The Commission's role was limited to providing a standard contract format, disbursing funds and audit. No privity of contract existed between the Claimant and the Commission.

p. 3
02

Applicability of the Court of Appeal decision in Parliamentary Service Commission v George Okoth Owuor

Holding

The decision applies and forecloses the argument that the Commission is the employer of constituency office staff

Reasoning

In that case the Court of Appeal held there was no privity of contract between the Commission and a constituency office employee, and that the Commission discharged its mandate by releasing funds to the constituency office. The court found the applicant's attempt to distinguish the case untenable, as the same issue — whether the Commission employs constituency staff — was determined there.

p. 5

Legal principles established

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  • The Parliamentary Service Commission's mandate under Article 127 of the Constitution does not include staffing of Constituency Offices of Members of Parliament
  • Members of Parliament recruit constituency office staff on their own account; the Commission only provides a contract format, funding and audit oversight, and is not in privity of contract with constituency staff

Court orders

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  1. 1.The application dated 9th December 2014 is dismissed
  2. 2.No orders for costs

Authorities

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Legislation

  • Constitution of KenyaArticle 127
  • Parliamentary Service (Constituency Offices) Regulations, 2005Regulations 21-24
  • Civil Procedure Rules, 2010Order 1 Rule 15
  • Parliamentary Service ActNo. 185A (as cited)
  • Judicature ActSection 2(3) (as cited by counsel)

Cases cited (1)

  • Parliamentary Service Commission v George Okoth Owuor & 2 Others
    Mombasa Civil Appeal No. 59 of 2014
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction (claim for employment; application under joinder provisions; Order 1 Rule 15 Civil Procedure Rules 2010 invoked)

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, "Andrew Tubei Mulati v Enock Wamalwa Kibunguchy & another [2017] KEELRC 1955 (KLR)", Case Analysis (2017). Not stated in judgment (Employment and Labour Relations Court claim; application dated 9th December 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1955/eng@2017-01-26

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