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ELRCStruck OutCase No 260 of 2017· [2019] KEELRC 1352 (KLR)

Samuel Kihurunjo Mwangi v Speaker, Murang’a County Assembly & another [2019] KEELRC 1352 (KLR)

Employment and Labour Relations Court
18 June 2019
NMNzioki wa Makau
1,113 words in judgment
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The bottom line

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Kenya's Employment Court struck out a Murang'a deputy speaker's claim, ruling elected county assembly members are not employees under the Employment Act.

What this practically means

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Executive summary

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The Respondents raised a preliminary objection contending that the Employment and Labour Relations Court lacked jurisdiction because the Claimant was not an employee of the 2nd Respondent but an elected member of the Murang'a County Assembly who had served as deputy speaker, and that his claim properly lay in the law courts at Murang'a. The objection was disposed of by way of written submissions. The Respondents argued that the Claimant held office by virtue of Article 177(1)(a) of the Constitution and that, following the High Court's nullification of the deputy speaker's office in Murang'a High Court Petition No. 14 of 2017, there was no legal basis to claim a salary, though they conceded he could retain sums lawfully earned between January and June 2018. The Claimant relied on Amos Muthui Muchiri v The County Assembly of Nyeri and Article 178(2)(b) of the Constitution, submitting that in performing deputy speaker duties he was an employee of the county assembly. Applying the Lillian S and Joey authorities on jurisdiction as a threshold issue, the court held that Article 178(2)(b) shows the deputy speaker is an elected member of the assembly, not an employee within Section 2 of the Employment Act. The court's jurisdiction under Article 162(2) being confined to employment and labour relations, the Claimant's dispute over the abolition of his office and non-payment of his allowance fell outside it. The preliminary objection was upheld, the suit struck out, with no order as to costs. Dated and delivered at Nyeri on 18 June 2019 by Nzioki wa Makau, Judge.

Key legal issues

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01

Whether the Employment and Labour Relations Court has jurisdiction over a dispute by an elected deputy speaker of a county assembly

Holding

The court lacks jurisdiction because the deputy speaker is an elected official under Article 178(2)(b) of the Constitution and not an employee under Section 2 of the Employment Act

Reasoning

Article 178(2)(b) contemplates that in the absence of the speaker, another member of the assembly elected by the assembly presides. The Claimant held the deputy speaker's office by election as a member of the county assembly, not by an employment contract. Section 2 of the Employment Act defines an employee by reference to employment under a contract of service, which an elected county assembly member does not have. Since the court's jurisdiction under Article 162(2) is confined to employment and labour relations, the dispute over the office and its allowance lies elsewhere, and the suit must be struck out.

p. 2
02

The primacy of jurisdiction as a threshold issue

Holding

Jurisdiction is a threshold question that must be decided forthwith on the material before the court; without jurisdiction, a court cannot take any further step

Reasoning

Relying on The Owners of Motor Vessel 'Lillian S' v Caltex Oil Kenya Ltd and Owners and Masters of The Motor Vessel 'Joey', the court held that a preliminary objection on jurisdiction must be raised at the earliest opportunity and disposed of immediately on whatever evidence is before the court. Where a court concludes it lacks jurisdiction, it must down its tools and cannot continue with the proceedings, however scanty the evidence placed before it.

p. 1

Legal principles established

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  • An elected deputy speaker of a county assembly is not an employee within the meaning of Section 2 of the Employment Act, and disputes concerning that office fall outside the jurisdiction of the Employment and Labour Relations Court

Court orders

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  1. 1.The suit is struck out
  2. 2.No order as to costs

Authorities

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Legislation

  • Constitution of KenyaArticle 177(1)(a)
  • Constitution of KenyaArticle 178(1), (2)(a), (2)(b), (3)
  • Constitution of KenyaArticle 162(2)
  • Employment ActSection 2

Cases cited (3)

  • The Owners of Motor Vessel "Lillian S" v Caltex Oil Kenya Limited
    (1989) KLR 1
  • Owners and Masters of The Motor Vessel "Joey" v Owners and Masters of The Motor Tugs "Barbara" and "Steve B"
    [2008] 1 EA 367
  • Amos Muthui Muchiri v The County Assembly of Nyeri & 3 Others
    [2019] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya (employment and labour relations jurisdiction)

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, "Samuel Kihurunjo Mwangi v Speaker, Murang’a County Assembly & another [2019] KEELRC 1352 (KLR)", Case Analysis (2019). Case No 260 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1352/eng@2019-06-18

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