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ELRCOtherELRC Petition (Nyandarua) dated 4th March 2021· [2021] KEELRC 1173 (KLR)

Elizabeth Wanjiku Muthui v Mukiri Muchiri; Speaker, County Assembly of Nyandarua & 2 others (Interested Parties) [2021] KEELRC 1173 (KLR)

Employment and Labour Relations Court
22 June 2021
HWHellen Wasilwa
2,156 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 ruled it can hear workplace-related disputes even when the two parties aren't each other's employer and employee.

What this practically means

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Executive summary

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This ruling by Wasilwa J of the Employment and Labour Relations Court decides a preliminary objection dated 10th March 2021 raising the objection that the court lacks jurisdiction over a petition filed by the Acting Clerk of the Nyandarua County Assembly against the former Acting Clerk, with interested parties enjoined. The respondent argued there was no employer-employee relationship between the parties as contemplated under section 12 of the ELRC Act, citing Nick Githinji Ndichu v Clerk Kiambu County Assembly, and urged that the petition was defective and an abuse of process. The petitioner countered that the dispute arose from her appointment as Acting Clerk and her ability to discharge its functions, matters incidental to employment, relying on Trusted Society of Human Rights Alliance v Nakuru Water, Abdullahi Ali Mohammed v Kenya Ports Authority, Geoffrey Oriaro, Mugendi and Abdikadir Suleiman. The court examined section 12 of the ELRC Act, acknowledged the absence of a direct employer-employee relationship between petitioner and respondent, but held that the petition arises out of the petitioner's appointment and the suspension of another employee, making it incidental to an employment matter within the court's exclusive jurisdiction under Article 162(2) and section 12(1)(a). Following Ongaya J in Trusted Society and Onyango J in Evan Kaiga Inyangala v County Government of Vihiga, the court rejected the preliminary objection and ordered costs of the application to be in the cause. The ruling was delivered virtually on 22nd June 2021.

Key legal issues

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01

Jurisdiction of the ELRC where no direct employer-employee relationship exists

Holding

Jurisdiction attaches by subject matter; disputes incidental to employment fall within section 12 of the ELRC Act

Reasoning

The court reviewed section 12 of the ELRC Act and noted that although the petitioner and respondent share no employer-employee relationship, the petition arises from the petitioner's appointment as Acting Clerk and the suspension of another employee. Following Ongaya J in Trusted Society and other authorities, the court held that matters incidental to employment fall within its exclusive jurisdiction under Article 162(2) and section 12(1)(a).

p. 4

Legal principles established

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  • The ELRC has jurisdiction over disputes incidental to or arising out of employment even absent a direct employer-employee relationship between the parties before it

Court orders

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  1. 1.The preliminary objection is dismissed; the court holds it has jurisdiction to hear the petition
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2); Articles 22(3), 23, 165(3)(b), 258
  • Employment and Labour Relations Court ActSection 12
  • County Assembly Service ActSection 21
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 2

Cases cited (7)

  • Nick Githinji Ndichu v Clerk Kiambu County Assembly and Another
    [2014] eKLR
  • Trusted Society of Human Rights Alliance v Nakuru Water and Sanitation Company and Another
    [2013] eKLR
  • Abdullahi Ali Mohammed v Kenya Ports Authority and Another
    [2016] eKLR
  • Geoffrey Oriaro v Cabinet Secretary Ministry of Labour Social Security and Services & 4 Others
    [2015] eKLR
  • Prof Daniel N. Mugendi v Kenyatta University & Others
  • Abdikadir Suleiman v County Government of Isiolo and Another
  • Evan Kaiga Inyangala & 2 others v County Government of Vihiga & 2 others
    Kisumu ELRC Cause No. 81 of 2014
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12(1)(a) 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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Cite this brief

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Cite this brief

Caselaw, "Elizabeth Wanjiku Muthui v Mukiri Muchiri; Speaker, County Assembly of Nyandarua & 2 others (Interested Parties) [2021] KEELRC 1173 (KLR)", Case Analysis (2021). ELRC Petition (Nyandarua) dated 4th March 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1173/eng@2021-06-22

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