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ELRCDismissedCause No 1227 of 2017· [2021] KEELRC 944 (KLR)

Jimnah Muchiri v Agrcultural Society of Kenya [2021] KEELRC 944 (KLR)

Employment and Labour Relations Court
13 September 2021
3,138 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a volunteer's unfair termination claim because volunteer allowances don't create employment and claims must be filed within three years.

What this practically means

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Executive summary

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The Claimant, a long-standing member of the Agricultural Society of Kenya, claimed he served the Society for over 40 years, rising through ranks as a volunteer/appointee. He was asked by letter dated 9th September 2011 to step aside to facilitate investigations, but was never notified of the results nor paid entitlements. He sought declarations that his suspension was unprocedural, unfair and unreasonable, that constitutional and statutory obligations were breached, alternative terminal dues of Kshs 4,108,000, a certificate of service, interest and costs. The Respondent denied employing him, contending he was a member serving voluntarily on committees, and challenged the court's jurisdiction under section 90 of the Employment Act (limitation) and section 12 of the ELRC Act. An earlier ruling of 13th February 2019 declined to determine the jurisdictional issues preliminarily, requiring evidence. At trial, the court first held that the withdrawn amended Statement of Claim (filed without leave under rule 14) could not sustain the case, and the original Statement of Claim would be relied on. On limitation, the cause of action arose on 9th September 2011; the claim filed on 30th June 2017 exceeded the three-year bar, no specific constitutional pleas being made to escape limitation, and a limitation objection goes to jurisdiction. On the merits of jurisdiction, the evidence showed the Claimant was a volunteer paid attendance allowances only, without the hallmarks of a contract of service under section 10 of the Employment Act; allowances do not convert a volunteer into an employee. The court lacked jurisdiction. The suit was dismissed with costs to the Respondent.

Key legal issues

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01

Limitation under section 90 of the Employment Act

Holding

The claim, filed more than five years after the cause of action accrued on 9th September 2011, was barred by the three-year limitation period

Reasoning

Section 90 imposes a three-year bar on proceedings to enforce rights under employment contracts, subject to a continuing-injury exception. The cause of action arose on 9th September 2011 when the Claimant was asked to step aside. The claim was filed on 30th June 2017, over five years later. No constitutional plea with specificity was made to escape limitation. Limitation deprives the court of jurisdiction.

02

Jurisdiction under section 12 of the ELRC Act - existence of an employment relationship

Holding

There was no employer-employee relationship; the Claimant was a volunteer, so the court lacked jurisdiction

Reasoning

The Claimant's own pleadings and evidence admitted voluntary service on committees with attendance allowances only. Documents lacked particulars of a contract of service under section 10 of the Employment Act (pay, leave, pension, notice, work hours). He was not managed by the HR department. Allowances alone do not make a volunteer an employee. A jurisdictional connection to employment was therefore absent.

p. 4
03

Status of the withdrawn, leave-less amended Statement of Claim

Holding

The court would rely only on the original Statement of Claim; the amended one was invalid for want of leave and had been withdrawn

Reasoning

Rule 14 of the ELRC (Procedure) Rules, 2016 permits amendment without leave only before pleadings close; thereafter leave is required. The amended Statement of Claim filed without leave was invalid, and the Claimant's advocates had applied to withdraw it, yet parts of the case were premised on it.

p. 1
04

Reopening of the limitation point after dismissal of the preliminary objection

Holding

The point could properly be revisited after evidence, as the earlier ruling only held it unfit to be determined preliminarily

Reasoning

The 13th February 2019 ruling did not dispose of the limitation issue on the merits; it held that evidence was needed. A party need not plead a point of law to canvass it (rule 14(3) does not make pleading obligatory), and in any event paragraph 25 of the Memorandum of Response was wide enough to ground it.

p. 2

Legal principles established

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  • A limitation objection goes to the jurisdiction of the court
  • Payment of an allowance to a volunteer does not constitute him an employee
  • For the ELRC to assume expanded jurisdiction, the dispute must be connected to employment and labour relations directly or indirectly
  • Constitutional pleadings must specify the constitutional provisions allegedly violated

Court orders

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  1. 1.Declined the prayer for a declaration that the Claimant was improperly terminated contrary to the Employment Act
  2. 2.Held the Claimant is not entitled to the compensatory damages prayed for
  3. 3.Dismissed the suit with costs to the Respondent

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 10
  • Employment and Labour Relations Court Actsection 12
  • Employment and Labour Relations Court (Procedure) Rules, 2016rule 14 and rule 14(3)
  • Constitution of Kenyaarticles 28 and 47

Cases cited (6)

  • Godfrey Paul Okutoyi (suing on his own behalf and on behalf of and representing and for the benefit of all past and present customers of banking institutions in Kenya) v Habil Olaka – Executive Director (Secretary) of the Kenya Bankers Association Being sued on behalf of Kenya Bankers Association) & another
    [2018] eKLR
  • Attorney General & Another vs Andrew Maina Githinji & Another
    [2016] eKLR
  • Thuranira Karauri vs Agnes Ncheche
    [1997] eKLR
  • Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Company Ltd and another
    (2013) eKLR
  • Nagvi Syed Qmar v Paramount Bank Ltd Ltd
    (2015) eKLR
  • Richard Stanley Gathuku Kinuthia v Kenya Red Cross Society
    (2016) eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act; sections 10 and 90 of the Employment Act

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, "Jimnah Muchiri v Agrcultural Society of Kenya [2021] KEELRC 944 (KLR)", Case Analysis (2021). Cause No 1227 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/944/eng@2021-09-13

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