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ELRCDismissedNot stated in judgment· [2021] KEELRC 1296 (KLR)

John Henry Taylor v Bedi Investment Limited & another [2021] KEELRC 1296 (KLR)

Employment and Labour Relations Court
16 June 2021
NMNzioki wa Makau
1,372 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court dismissed a worker's bid for unpaid salary, ruling final claims like declarations and damages can only be decided after a full hearing.

What this practically means

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Executive summary

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The Claimant/Applicant filed a Notice of Motion dated 10th February 2021 in the Employment and Labour Relations Court at Nairobi seeking declarations that a valid contract of employment existed between the parties through correspondence, that the Respondents were in breach of that contract, that his salary for roughly three months and three weeks (Kshs. 1,320,657/-) had been unlawfully withheld, and orders for damages and payment of the withheld salaries with interest. The Claimant alleged he was engaged in January 2018 following World Bank/IFC support for a pilot project, worked from 1st July 2018 to 30th September 2018, and was never paid because no contract with the World Bank had been concluded and its funding did not consummate. The Respondents, in a Replying Affidavit sworn by the 2nd Respondent, contended that no contract of service existed between them and the Claimant, that they had honoured their obligation by covering accommodation and logistics, and that the application was incompetent: it invoked non-existent provisions, and sought final prayers not anchored on the Statement of Claim, incapable of being granted at an interlocutory stage. In written submissions the Respondents argued the Court's jurisdiction had not been properly invoked because the application relied on the Civil Procedure Act and Rules, which per Rule 32 of the ELRC (Procedure) Rules 2016 apply only to execution proceedings, and cited Court of Appeal authority that major relief cannot be granted before the main suit is heard. The Claimant filed no submissions. The Court agreed that the reliefs sought were summary in nature and available only after a full hearing, held that jurisdiction had not been properly invoked, dismissed the motion and ordered each party to bear their own costs. The substantive question of whether a contract of employment existed remains for trial.

Key legal issues

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01

Whether final declarations and payment of withheld salary could be granted on an interlocutory motion

Holding

No - such orders are final reliefs available only after a full hearing on the merits; the motion sought summary judgment and was dismissed

Reasoning

The Court observed that the substantive prayers sought declarations of a valid employment contract, breach, unlawfully withheld salary, damages and payment - all final in nature. The Respondents argued, citing Court of Appeal authority, that major relief cannot be granted before the main suit is heard. The Court agreed that the reliefs were only available after a hearing and that jurisdiction had not been properly invoked, since the motion relied on inapplicable procedural provisions.

p. 2
02

Whether the ELRC could entertain an application grounded on the Civil Procedure Act and Civil Procedure Rules 2010

Holding

No - the procedural law of the ELRC is not that of the civil courts; Rule 32 of the ELRC (Procedure) Rules 2016 limits application of Civil Procedure Rules to execution proceedings

Reasoning

The Respondents submitted that the application was expressly brought under the Civil Procedure Act and Rules which do not govern this specialist Court, and that Rule 32 limits the application of Civil Procedure Rules to execution. The Court accepted that jurisdiction had not been properly invoked. Whether there was a contract of service could only be determined after hearing the cause on its merits.

p. 2

Legal principles established

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  • Final declaratory reliefs cannot be granted at the interlocutory stage; they are only available after a full hearing
  • An application under non-existent or inapplicable provisions fails to invoke the Court's jurisdiction

Court orders

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  1. 1.The Notice of Motion dated 10th February 2021 is dismissed
  2. 2.Each party to bear their own costs for the motion

Authorities

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Legislation

  • Civil Procedure ActNot specified
  • Civil Procedure Rules 2010Not specified
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 32

Cases cited (4)

  • Vivo Energy Kenya Limited v Maloba Petrol Station Limited & 3 Others
    [2015] eKLR
  • Olive Mwihaki Mugenda & Another v Okiya Omtata Okoiti & 4 Others
    [2016] eKLR
  • Benvick Warehouse Limited v DCI, Regional Coordinator Coast & 4 Others
    [2020] eKLR
  • Barclays Bank of Kenya Ltd v Banking, Insurance & Finance Union (Kenya)
    [2019] eKLR
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016

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, "John Henry Taylor v Bedi Investment Limited & another [2021] KEELRC 1296 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1296/eng@2021-06-16

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