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ELRCDismissedNot stated in the judgment as provided· [2018] KEELRC 2576 (KLR)

Festus Shikuli Shivonje & another v Western Steel Mills Limited [2018] KEELRC 2576 (KLR)

Employment and Labour Relations Court
29 June 2018
1,113 words in judgment
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The bottom line

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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

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Executive summary

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The respondent, Western Steel Mills Limited, filed a Notice of Preliminary Objection on 23 November 2017 contending that, pursuant to section 12 of the Employment and Labour Relations Court Act, the court lacked jurisdiction because it was not the claimants' employer; the claimants' employment was, it said, with Jokali Handling Services, as allegedly evidenced by NSSF records. Relying on David Randu v Malindi Water and George Onyango Ochieng v Chemelil Sugar, the respondent submitted that absent an employer-employee relationship the ELRC has no jurisdiction. The claimants opposed, arguing the objection raised factual, not legal, issues contrary to the Mukisa Biscuit threshold, and that the respondent, having filed no defence, was using the objection as a delay tactic. The court applied Mukisa Biscuit, holding that a preliminary objection must raise a pure point of law on assumed pleaded facts. It found the respondent's assertion that the claimants were Jokali's employees unsupported by any material evidence, and the NSSF claim left bare. Sections 10 and 74 of the Employment Act oblige an employer to keep employment records; a party asserting a third-party employment relationship should have pleaded those facts in a defence, which the respondent never filed. The objection therefore required the call of evidence and failed the threshold. The court dismissed the preliminary objection with costs to the claimants, delivered at Eldoret on 29 June 2018.

Key legal issues

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01

Whether the objection that the claimants were employees of Jokali Handling Services, not the respondent, can be determined as a preliminary point of law

Holding

It cannot; the objection rests on contested factual averments requiring evidence, so it fails the Mukisa Biscuit threshold.

Reasoning

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.

p. 2
02

Whether the ELRC has jurisdiction under section 12 where the existence of an employment relationship is disputed

Holding

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.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The preliminary objection is dismissed
  2. 2.Costs to the claimants
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, 2011

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, "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.