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ELRCDismissedNot stated in judgment (application/Notice of Motion dated 15th October, 2019)· [2020] KEELRC 1751 (KLR)

Magerer Langat & another v Paul Kiprono Chepkwony Governor County Government of Kericho & 2 others [2020] KEELRC 1751 (KLR)

Employment and Labour Relations Court
23 January 2020
MMM. Mbaru
2,580 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed it can hear municipal board disputes but declined to stop Kericho from replacing board members before a full hearing.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Employment and Labour Relations Court at Nakuru on a Notice of Motion dated 15th October 2019 filed by petitioners appointed to the Kericho Municipal Board for five-year terms effective 1st December 2018. They sought conservatory and prohibitory orders restraining the respondents from advertising and filling the positions they hold, a declaration that the respondents violated their rights to fair labour practices and fair administrative action under Article 47(2) by treating the Attorney General's advisory opinion of 8th April 2019 as law and declaring them caretaker members, suspension of the Municipal Board's projects pending the main petition, and an audit report. The respondents opposed, arguing that board members are not employees but holders of office created by statute, remunerated by allowances under section 25 of the Urban Areas and Cities Act, that the Urban Areas and Cities (Amendment) Act 2019 rendered unqualified members disqualified by operation of law, and that the court lacked jurisdiction. The court first upheld its jurisdiction, holding that the ELRC is not confined to employer-employee disputes but covers all disputes relating to employment and labour relations and connected purposes. It then declined the interlocutory application, noting that the core questions were reserved for the main petition, that the respondents' failure to file a Replying Affidavit deprived the court of vital material, and that interim orders would not aid justice. The application was dismissed, the petition prioritised for hearing at Kericho, with costs in the cause.

Key legal issues

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01

Whether the ELRC has jurisdiction over disputes concerning municipal board members

Holding

Yes; the court's jurisdiction covers all disputes relating to employment and labour relations and connected purposes, not merely employer-employee contractual disputes

Reasoning

Article 162(2)(a) and section 12 of the ELRC Act grant jurisdiction over all employment and labour relations disputes. The petitioners' claims are pegged on threatened termination of what they assert to be employment and on their appointment as board members, making the matter appropriate for the court despite the respondents' objection that board members lack a contract of service.

p. 3
02

Whether interim/conservatory orders should issue at the interlocutory stage

Holding

No; the application was declined because the core questions belong to the main petition and the respondents filed no Replying Affidavit

Reasoning

The orders sought stopping advertisement and replacement of the petitioners, quashing the memo dated 27th September 2019, and complaints of discrimination and unfair administrative action are the core matters in the main petition. Determining them at the interlocutory stage without a Replying Affidavit would not aid justice and would deny the court important information.

p. 4

Legal principles established

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  • The jurisdiction of the Employment and Labour Relations Court is not confined to employer-employee disputes but extends to all disputes relating to employment and labour relations and connected purposes
  • Municipal board members are not salaried employees; they receive allowances determined with the advice of the Salaries and Remuneration Commission
  • A respondent who files Grounds of Opposition should also file a Replying Affidavit, as the affidavits supply the material the court needs to determine the matter

Court orders

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  1. 1.The application dated 15th October, 2019 is declined
  2. 2.The petition shall be heard on priority basis at Kericho
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of KenyaArticles 10, 19, 20, 21(1), 22(1), 23(1), 27, 47, 47(2), 162(2)(a), 184(1), 231, 258, 259
  • Fair Administrative Action Actsection 4
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2010Rules 23 and 24
  • Urban Areas and Cities Act, 2011sections 14, 23, 25
  • Urban Areas and Cities (Amendment) Act, 2019section 14
  • Employment Act, 2007sections 2 and 9(1)
  • Employment and Labour Relations Court Act, 2011section 12
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 17, 21 and 25(3)
  • Interpretations and General Provisions ActNot specified

Cases cited (7)

  • Gatirau Peter Munya versus Dickson Mwendwa Kithinji & 2 others
    [2014] eKLR
  • Pauline Anna Bernadette Onyango versus Kenya School of Law
    [2017] eKLR
  • JSC versus Mbalu Mutava Musyimi
    [2015] eKLR
  • Wilbert Kipsang Choge & 6 Others versus Communication Authority of Kenya & Another
    (2016) eKLR
  • Celina Atieno Ogutu versus Undugu Society of Kenya
    [2019] eKLR
  • Naqvi Syed Qmar versus Paramount Bank Limited & another
    [2015] eKLR
  • Giella versus Caseman Brown
Jurisdiction invoked
Article 162(2)(a) of the Constitution and the Employment and Labour Relations Court Act, 2011 (employment and labour relations and connected purposes)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Magerer Langat & another v Paul Kiprono Chepkwony Governor County Government of Kericho & 2 others [2020] KEELRC 1751 (KLR)", Case Analysis (2020). Not stated in judgment (application/Notice of Motion dated 15th October, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/1751/eng@2020-01-23

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