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ELRCOtherCause (number not stated on the judgment)· [2022] KEELRC 186 (KLR)

Brian Owaru Kafwa v Sensations Limited [2022] KEELRC 186 (KLR)

Employment and Labour Relations Court
5 April 2022
983 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court ruled it can hear a sales rep's unfair termination claim even though his salary was under the Kshs.80,000 Magistrates Court threshold.

What this practically means

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Executive summary

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The Petitioner, employed by the Respondent as a sales representative at a monthly salary of Kshs.18,000/= plus a 2% sales allowance, petitioned the Employment and Labour Relations Court on 7th April 2021 alleging violation of his rights under the Employment Act 2007 and the Constitution of Kenya 2010. He alleged his services were terminated following a theft allegation against his brother, that he was placed on repeated unpaid leaves, and that this compelled his resignation. The Respondent raised a Notice of Preliminary Objection contending that the court lacks pecuniary jurisdiction in view of the Gazette Notice dated 22nd June 2018 conferring jurisdiction on Magistrates Courts over claims where gross salary does not exceed Kshs.80,000/=. Only the Claimant filed submissions, relying on Janet Muriungu v Chief Officer Department of Education (2018 eKLR) arguing the Gazette Notice does not oust the court's constitutional jurisdiction under Article 162. Mwaure J held that whether the claimant's salary falls within the threshold is a factual matter for determination at the hearing, citing Wasilwa J in Mary Wakarima Maina v Suada Sheikh Ahmed, and adopted Nderi Nduma J's holding in John Adoyo v De La Rue that the ELRC enjoys concurrent jurisdiction with Magistrates Courts over claims earning under Kshs.80,000/=. The court further noted the petition raises constitutional rights issues falling within its ambit but limited in the subordinate courts, and retained the matter. The preliminary objection failed; the matter proceeds in the ELRC with directions on pleadings and submissions and mention on 12th May 2022. No costs order was made.

Key legal issues

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01

Whether the ELRC lacks pecuniary jurisdiction over the claim by reason of the Gazette Notice of 22nd June 2018 conferring jurisdiction on Magistrates Courts over claims where gross salary does not exceed Kshs.80,000/=

Holding

The preliminary objection fails. The Gazette Notice does not oust the ELRC's jurisdiction; the court has concurrent jurisdiction over such claims, and the claimant's actual salary is a factual question for determination after hearing the parties.

Reasoning

The court reasoned that the key issue is the amount of the claimant's salary, which is a factual matter determinable only upon hearing the parties, as held by Wasilwa J. It further adopted Nderi Nduma J's holding that the ELRC has concurrent jurisdiction with Magistrates Courts over claims earning under Kshs.80,000/=, and the Gazette Notice supplements rather than ousts the court's constitutional jurisdiction under Article 162. Additionally, the petition raises constitutional rights violations under the Employment Act and the Constitution which fall within this court's ambit but are limited in the subordinate courts.

p. 2

Legal principles established

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  • The Employment and Labour Relations Court has concurrent jurisdiction with the Magistrates Courts over claims by claimants earning a gross monthly salary of less than Kshs.80,000/=, and a Gazette Notice capping the subordinate court's pecuniary jurisdiction does not oust the ELRC's jurisdiction
  • Whether a claimant's salary falls below the pecuniary threshold is a factual matter to be determined upon hearing the parties, not on a preliminary objection
  • Constitutional rights claims in an employment dispute fall within the ELRC's ambit and should be retained by the court notwithstanding the pecuniary threshold

Court orders

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  1. 1.The Notice of Preliminary Objection on pecuniary jurisdiction is dismissed and the matter will proceed in this court
  2. 2.Respondent to file its response within 14 days and serve
  3. 3.Petitioner to file submissions within 14 days of service
  4. 4.Respondent to file its submissions within 14 days of service
  5. 5.Mention on 12th May 2022 to confirm compliance and give a judgment date

Authorities

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Legislation

  • Employment Act2007; Sections 27, 28, 41, 47 (as referenced rights provisions)
  • Employment and Labour Relations Court ActNo. 20 of 2011, Section 12
  • Labour Relations Act2011
  • Constitution of KenyaArticles 162, 165(3), 159(2)(d), 48
  • Civil Procedure RulesOrder 21 Rule 1
  • Civil Procedure ActSection 1B
  • Gazette Noticedated 22nd June 2018 (pecuniary jurisdiction of Magistrates Courts)

Cases cited (3)

  • JANET MURIUNGU VERSUS CHIEF OFFICER DEPARTMENT OF EDUCATION
    2018 EKLR
  • MARY WAKARIMA MAINA VERSUS SUADA SHEIKH AHMED & 2 OTHERS
    2012 EKLR, CAUSE NO 23 OF 2021
  • JOHN ADOYO & 6 OTHERS V DE LA RUE CURRENCY AND SECURITY PRINT LIMITED
    [2022] EKLR
Jurisdiction invoked
Article 162(2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act, No. 20 of 2011

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, "Brian Owaru Kafwa v Sensations Limited [2022] KEELRC 186 (KLR)", Case Analysis (2022). Cause (number not stated on the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/186/eng@2022-04-05

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