Celina Atieno Ogutu v Undugu Society of Kenya [2019] KEELRC 2292 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the claimant should be granted leave to amend the statement of claim to offer better particulars of the pleaded defamation claim
- 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.Whether the application amounts to an abuse of court process
Key legal issues
#Whether the ELRC has jurisdiction over defamation claims pleaded as consequential to an employment dispute
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.
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.
Whether leave to amend should be granted to supply better particulars of an already pleaded claim
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.
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.
Legal principles established
#- 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
#- 1.Leave granted to the claimant to file the Amended Claim within 14 days
- 2.Leave granted to the respondent to file a defence to the Amended Claim within 14 days of service
- 3.No orders for costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
There shall be no orders for costs of the application.
Quotable passages
#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.
The respondent will have corresponding leave to file defence to the Amended Claim within 14 days of service.
There shall be no orders for costs of the application.
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.
The jurisdiction of this Court extends to all disputes relating to employment and labour relations.
Issues in the judgment
#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
The deponent refers to 'the amended defence' although the application sought to amend the claim
The judgment does not state the name of the respondent party or the case number of the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.