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ELRCDismissedNot stated in the excerpt· [2021] KEELRC 375 (KLR)

Clive Nyaaga Ogwora v Governor Nyamira County & 2 others [2021] KEELRC 375 (KLR)

Employment and Labour Relations Court
25 November 2021
CBChristine N. Baari
1,920 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled it can hear job recruitment disputes even when no employment relationship exists yet.

What this practically means

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Executive summary

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This is a ruling on a Notice of Preliminary Objection dated 28th September 2021, brought by the 1st and 2nd Respondents against a judicial review application by the Ex parte Applicant, who sought to compel the 1st Respondent to appoint him as a member of the County Executive Committee of the 2nd Respondent. The Respondents argued the court lacked jurisdiction because the position sought was a state office, no employer-employee relationship existed, and the suit offended the separation of powers. The 3rd Respondent supported the objection, contending that absent an employer-employee relationship the court lacked jurisdiction. The Applicant opposed, relying on Article 162(2) and Section 12 of the ELRC Act. In a ruling delivered at Kisumu on 25th November 2021, Baari J framed two questions: whether an employment relationship existed, and whether the dispute related to employment. The court held that no employment relationship existed - the Applicant was a candidate in a recruitment process who was nominated and vetted but never approved or appointed, failing the control and mutuality-of-obligation tests. However, the court found the dispute nonetheless related to employment, giving it jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act, which extends to all employment-related disputes. The preliminary objection was dismissed with costs in the cause. The court rejected the argument that it could not entertain the matter merely because the Applicant was not an employee.

Key legal issues

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01

Existence of an employment relationship between the Ex parte Applicant and the Respondents

Holding

No employment relationship exists because the Applicant was never approved or appointed

Reasoning

The court applied the Employment Act definitions of 'employee' and 'employer' and the control/mutuality-of-obligation tests from Christine Adot Lopeyio v Wycliffe Mwathi Pere. The Applicant was only a candidate in a recruitment process; he was nominated and vetted but never approved by the 3rd Respondent or appointed by the 1st Respondent, so he was not subject to the Respondents' command, rules or business.

p. 3
02

Whether the dispute relates to employment for purposes of the ELRC's jurisdiction

Holding

Yes - the dispute, being a challenge to a recruitment and appointment process to a County Executive Committee position, relates to employment

Reasoning

Despite finding no employment relationship, the court held that Section 12 of the ELRC Act extends jurisdiction to all disputes relating to employment, not only disputes between employer and employee. The Applicant's grievance arose from a recruitment process for a CEC position, which is an employment-related issue, so the court declined to down its tools.

p. 3

Legal principles established

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  • Section 12 of the ELRC Act confers jurisdiction on the ELRC over all disputes relating to employment, whether or not an employer-employee relationship exists

Court orders

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  1. 1.The Preliminary Objection dated 28th September, 2021 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(a); Article 165(6); Article 260
  • Employment and Labour Relations Court ActSection 12(1)(a)
  • Employment Act, 2007Section 2 (definitions of employee and employer)

Cases cited (5)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors ltd
    (1969) EA 696
  • Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] eKLR
  • County Government of Nyeri & another v Cecilia Wangechi Ndungu
    [2015] eKLR
  • Christine Adot Lopeyio v Wycliffe Mwathi Pere
    [2013] eKLR
  • Nick Githinji Ndichu v Clerk, Kiambu County Assembly & another
    [2014] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Clive Nyaaga Ogwora v Governor Nyamira County & 2 others [2021] KEELRC 375 (KLR)", Case Analysis (2021). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/375/eng@2021-11-25

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