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ELRCDismissedNot stated in judgment· [2018] KEELRC 1745 (KLR)

Caren Chepchumba Limo (Suing as Personal Representative of the Estate of Stephen Nalianya Ndiwa (Deceased) v Jemi Freights Limited & another [2018] KEELRC 1745 (KLR)

Employment and Labour Relations Court
12 June 2018
DMD.K.Njagi Marete
1,865 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 and Labour Relations Court ruled it can hear any claim tied to employment, no matter where the accident happened or what damages are sought.

What this practically means

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Executive summary

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The 1st respondent raised a preliminary objection dated 25th April 2018 seeking striking out of the entire suit with costs on two grounds: that the court lacked jurisdiction to entertain the suit, and that the suit was misconceived, incompetent and fatally defective. The suit sought special and general damages for the death of the claimant's deceased, who was allegedly in the 1st respondent's employment and died in an accident while driving motor vehicle KCC 948S. The objector argued, relying on section 15(c) of the Civil Procedure Act and Desai vs. Warsama and Allarkhia vs. Aga Khan, that the cause of action arose outside the court's jurisdiction and that lack of jurisdiction is fatal and cannot be conferred by consent. The claimant countered that a dispute over non-compensation of an employee injured or killed in the course of employment is an employment dispute within the court's jurisdiction under Article 162(2)(a) and section 12 of the Employment and Labour Relations Court Act. The court applied Seven Seas Technologies, Abdikadir Suleiman and Professor Elijah Biama, holding that the golden test of its jurisdiction is subject matter - disputes relating to employment and labour relations - not the remedy sought, the procedure, or the situs of the cause of action. It declined to dissect claims into fragments for dispersal among courts. The preliminary objection was dismissed with costs to the claimant/respondent.

Key legal issues

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01

Whether lack of territorial jurisdiction under section 15(c) of the Civil Procedure Act defeats the court's jurisdiction

Holding

No - the test for this court's jurisdiction is subject matter: disputes relating to employment and labour relations, not remedies sought or where the cause of action arose

Reasoning

The court held that Article 162(2)(a) and section 12 of the Employment and Labour Relations Court Act confer jurisdiction over disputes relating to employment and labour relations. A claim by an employee's estate for damages for death in the course of employment is such a dispute. The court declined to dissect claims into separate units for dispersal to other jurisdictions, holding that the 'relating to employment and labour relations' formulation resolves the issue and that lack of jurisdiction cannot be cured, but here jurisdiction exists.

p. 2

Legal principles established

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  • The jurisdiction of the Employment and Labour Relations Court extends to all disputes relating to employment and labour relations, regardless of the remedy sought, the procedure adopted, or the place where the cause of action arose

Court orders

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  1. 1.The preliminary objection dated 25th April 2018 is dismissed
  2. 2.Costs of the preliminary objection awarded to the claimant/respondent

Authorities

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Legislation

  • Employment Actsection 12(1)
  • Civil Procedure Act, Chapter 21, Laws of Kenyasection 15(c)
  • Constitution of KenyaArticles 159(1), 159(2), 162(2)(a), 165(5) and (6), 221, 258(1), 41
  • Employment and Labour Relations Court Actpreamble and section 12
  • Employment and Labour Relations Actnot specified

Cases cited (6)

  • Desai vs. Warsama
    (1967) E.A 353
  • Allarkhia vs. Aga Khan
    (1968) E.A 617
  • Seven Seas Technologies Limited v Eric Chege
    [2014] eKLR
  • Abdikadir Suleiman v County Government of Isiolo and Another
    [2015] eKLR
  • Professor Elijah Biama v University of Eldoret and 2 Others
    [2014] eKLR
  • Harrikson v Attorney-General of Trinidad and Tobacco
    (1980) AC 265
Jurisdiction invoked
Article 162(2)(a) of the Constitution; Employment and Labour Relations Court Act, section 12

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, "Caren Chepchumba Limo (Suing as Personal Representative of the Estate of Stephen Nalianya Ndiwa (Deceased) v Jemi Freights Limited & another [2018] KEELRC 1745 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/1745/eng@2018-04-12

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