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ELRCPartially AllowedNot stated in judgment (Notice of Motion dated 17th December 2018)

Celina Atieno Ogutu v Undugu Society of Kenya [2019] KEELRC 2292 (KLR)

Employment and Labour Relations Court
15 February 2019
2,218 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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Kenya's Employment Court confirmed it can hear defamation claims tied to an employment dispute, and allowed the employee to amend her claim to add details.

What this practically means

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Executive summary

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The claimant, Celina Atieno Ogutu, applied by notice of motion dated 17th December 2018, under Section 12 of the Employment and Labour Relations Court Act and Rule 14(6) of the ELRC (Procedure) Rules, for leave to amend her statement of claim by furnishing better particulars of an already pleaded defamation claim arising from allegedly doctored and libellous minutes of a meeting of 6th July 2017. The respondent, through its Board Chairman Wilfred Onono, opposed the application, contending that the defamation allegations fell outside the court's jurisdiction under Section 12(1) of the ELRC Act and that the application was an abuse of process. In written submissions, the claimant relied on Paramount Bank Limited v Naqvi Syed Qamara (Court of Appeal) to show that employment-related defamation is within the court's jurisdiction; the respondent relied on KEMRI v Davy Kiprotich Koech and the Supreme Court's decision in Samuel Kamau Macharia v KCB on the limits of jurisdiction. Justice Maureen Onyango reviewed the jurisprudence on the ELRC's accrued and consequential jurisdiction, including George Joshua Okungu v Kenya Pipeline and Wilbert Kipsang Choge, and Australian authorities on accrued jurisdiction. She held that jurisdiction is determined by the dominant subject matter and, once attracted, extends to all secondary issues; that the defamation averments were already pleaded; and that the respondent had expressly admitted the court's jurisdiction in its memorandum of reply. Leave to amend was granted, with corresponding leave for the respondent to file a defence, and no orders as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the claimant should be granted leave to amend the statement of claim to offer better particulars of the pleaded defamation claim
  2. 2.Whether the intended amendments introducing defamation allegations fall outside the jurisdiction of the Employment and Labour Relations Court under Section 12(1) of the ELRC Act
  3. 3.Whether the application amounts to an abuse of court process

Key legal issues

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01

Whether the ELRC has jurisdiction over defamation claims pleaded as consequential to an employment dispute

Holding

The court has jurisdiction over employment-related defamation where it flows from the employment dispute; jurisdiction is attracted by the dominant subject matter and extends to consequential or accrued aspects of the dispute.

Reasoning

Relying on its earlier decisions including George Joshua Okungu v Kenya Pipeline, Wilbert Kipsang Choge and Naqvi Syed Qmar v Paramount Bank, the court held that once jurisdiction is attracted by the employment dispute's factual background, the court is clothed with accrued or consequential jurisdiction to determine the whole matter, including defamation claims, avoiding duplicity and uneconomical splitting of claims among courts of equal status.

p. 2
02

Whether leave to amend should be granted to supply better particulars of an already pleaded claim

Holding

Leave was granted because the amendment was intended to furnish better particulars of a claim already pleaded, and the respondent had expressly admitted the court's jurisdiction in its memorandum of reply.

Reasoning

The claimant's counsel submitted, and the respondent agreed, that supplying better particulars is a legitimate reason for amendment. The respondent's objection that the amendments introduced a cause of action outside jurisdiction failed because the defamation averments were already pleaded in paragraphs 40 and 41 of the claim and jurisdiction was expressly admitted at paragraph 42 of the memorandum of reply.

p. 3

Legal principles established

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  • Jurisdiction is determined from the most dominant issue; once seized of the dominant dispute, the court is clothed with jurisdiction over all secondary issues arising from the same facts.
  • The ELRC's jurisdiction extends to all disputes relating to employment and labour relations, including consequential claims such as employment-related defamation, not merely employer-employee disputes.
  • Courts do not encourage multiplicity of actions arising from the same facts.

Court orders

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  1. 1.Leave granted to the claimant to file the Amended Claim within 14 days
  2. 2.Leave granted to the respondent to file a defence to the Amended Claim within 14 days of service
  3. 3.No orders for costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act and Article 162(2)(a) of the Constitution; application brought under Rule 14(6) of the Employment and Labour Relations Court (Procedure) Rules

Relief refused

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Respondent's prayer that the application be dismissed with costs

The court found no merit in the respondent's objections to jurisdiction, noting the respondent had admitted jurisdiction in its memorandum of reply

p. 3

Costs

There shall be no orders for costs of the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the circumstances I find no merit in the objections raised by the respondent and grant leave to the claimant to file the Amended Claim within 14 days.
p. 3Final orders - leave to amend granted
The respondent will have corresponding leave to file defence to the Amended Claim within 14 days of service.
p. 3Final orders - corresponding leave to respondent
There shall be no orders for costs of the application.
p. 3Costs
Jurisdiction will be determined from the most dominant issue and the court will after determining the issue of jurisdiction based on the dominant subject be clothed with jurisdiction to determine all secondary issues.
p. 3Accrued/consequential jurisdiction
The jurisdiction of this Court extends to all disputes relating to employment and labour relations.
p. 3Scope of ELRC jurisdiction

Issues in the judgment

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minor

The affidavit refers to Rule 114(7) of the ELRC (Procedure) Rules while the application and submissions refer to Rule 14(7) of the same Rules

minor

The deponent refers to 'the amended defence' although the application sought to amend the claim

minor

The judgment does not state the name of the respondent party or the case number of the suit

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, "Celina Atieno Ogutu v Undugu Society of Kenya [2019] KEELRC 2292 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 17th December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2292/eng@2019-02-15

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