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ELRCDismissedNot stated in the judgment· [2021] KEELRC 1825 (KLR)

Felix Erick Gwaro Omariba v Isuzu East Africa Limited & another [2021] KEELRC 1825 (KLR)

Employment and Labour Relations Court
22 April 2021
OMOnesmus N. Makau
1,257 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Onesmus N. Makau, Judge) delivered on 22 April 2021 on the 2nd respondent's Notice of Motion dated 8 July 2020 seeking to strike out the claim against it with costs. The 2nd respondent, the claimant's former employer, argued that the court lacked jurisdiction because the defamation claim did not arise from a contract of employment with it, that no privity existed between it and the claimant, and that the claim belonged in the High Court under Order 1 Rule 10(2) of the Civil Procedure Rules. The claimant countered that he resigned from the 2nd respondent to join the 1st respondent, which then sought a reference; the 2nd respondent allegedly gave a false and malicious negative report leading to the claimant's summary dismissal by the 1st respondent. The claimant maintained the defamation claim was coincidental to the employment dispute and within the court's jurisdiction under Article 162(2) of the Constitution and section 12 of the ELRC Act. Relying on Paramount Bank Ltd v Vagvi Syed Qumara and Barclays Bank of Kenya Ltd v Julius Kiema Kenga, the court held that tortious claims between former employers and employees can be determined alongside unfair termination claims where they spring from the employment relationship. Since the impugned report was given by the 2nd respondent in its capacity as former employer, the court found the defamation claim fell within its jurisdiction and dismissed the application.

Key legal issues

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01

Whether the ELRC has jurisdiction over a defamation claim against a former employer

Holding

Yes - the defamation claim arising from a reference report given by the former employer is within the court's jurisdiction and may be determined alongside the unfair dismissal claim against the new employer

Reasoning

The court traced its jurisdiction to Article 162(2)(a) of the Constitution and section 12 of the ELRC Act. Relying on Paramount Bank Ltd v Vagvi Syed Qumara and Barclays Bank of Kenya Ltd v Julius Kiema Kenga, it adopted the position that tortious claims springing from the employer/employee relationship can be determined alongside unfair termination claims. Since the defamatory report was given by the 2nd respondent in its capacity as former employer, the claim fell within the court's exclusive jurisdiction.

p. 2

Legal principles established

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  • A tortious claim between a former employer and employee can be heard alongside an unfair termination claim if it originates from the employment relationship

Court orders

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  1. 1.The 2nd respondent's Notice of Motion dated 8.7.2020 seeking striking out of the claim against it was dismissed, the court holding it has jurisdiction to determine the defamation claim alongside the claim for unfair dismissal

Authorities

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Legislation

  • Constitution of KenyaArticle 162(2)(a)
  • Employment and Labour Relations Court ActSection 12(1), 12(3)(v), 12(3)(vi)
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • ELRC (Procedure) RulesRule 28(3)

Cases cited (2)

  • Paramount Bank Ltd v Vagvi Syed Qumara & another
    [2017] eKLR
  • Barclays Bank of Kenya Ltd v Julius Kiema Kenga & another
    [2019] eKLR
Jurisdiction invoked
Article 162(2) 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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Cite this brief

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Cite this brief

Caselaw, "Felix Erick Gwaro Omariba v Isuzu East Africa Limited & another [2021] KEELRC 1825 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1825/eng@2021-04-22

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