Festus Shikuli Shivonje & another v Western Steel Mills Limited [2018] KEELRC 2576 (KLR)
The bottom line
#Kenya's Employment Court dismissed Western Steel Mills' attempt to have workers' claims thrown out, ruling jurisdictional challenges based on disputed facts need a defence, not a preliminary objection.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection that the claimants were employees of Jokali Handling Services, not the respondent, can be determined as a preliminary point of law
It cannot; the objection rests on contested factual averments requiring evidence, so it fails the Mukisa Biscuit threshold.
The court found the respondent's assertion that the claimants were employed by Jokali Handling Services unsupported by material evidence. NSSF record claims were left bare. Sections 10 and 74 of the Employment Act oblige an employer to keep employment records; a party asserting the claimants belonged to a third party should have filed a defence pleading those facts. Since no defence was filed, the court lacked the factual material to resolve the objection as a matter of law, and the claim's averments required a call of evidence.
Whether the ELRC has jurisdiction under section 12 where the existence of an employment relationship is disputed
Jurisdiction cannot be declined on a preliminary objection where the existence of the employment relationship is a disputed question of fact to be established at trial.
Section 12 of the Employment and Labour Relations Court Act confers jurisdiction over disputes between employer and employee. The respondent invoked section 2 of the Employment Act and case law holding that jurisdiction ceases where no employer-employee relationship exists. But the court held that whether such a relationship exists here depends on evidence; the objection therefore engaged facts, not pure law, and the proper course was for the respondent to plead its case in a defence.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot be raised where facts must be ascertained or where judicial discretion is sought
- Under sections 10 and 74 of the Employment Act an employer must keep employment records, so a party contending the claimants were employed by a third party should plead those facts in a defence rather than in a preliminary objection
Court orders
#- 1.The preliminary objection is dismissed
- 2.Costs to the claimants
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Festus Shikuli Shivonje & another v Western Steel Mills Limited [2018] KEELRC 2576 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2576/eng@2018-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.