Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherNot stated in judgment (Memorandum of Claim dated 12th July, 2018)· [2022] KEELRC 217 (KLR)

Apollo Mulianga Ekesa v Life Care Hospitals Limited [2022] KEELRC 217 (KLR)

Employment and Labour Relations Court
21 April 2022
JKJ. W. Keli
1,473 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled it cannot hear a doctor's unpaid fees claim because consultants without an employment relationship must sue in the High Court.

What this practically means

#

Executive summary

#
The Claimant, a doctor, sued the Respondent hospital for unpaid professional fees of Kshs. 7,884,624/- for medical services rendered as a visiting consultant, together with damages, costs and interest. The Respondent acknowledged only Kshs. 1,317,750/- as due for unpaid services and relied on an audit report. After the defence case, the court questioned its own jurisdiction. Applying the Owners of Motor Vessel 'Lilian S' v Caltex Oil principle that jurisdiction is everything and a court without it must down its tools, the court examined Section 12(1) of the ELRC Act and Article 162 of the Constitution, which confine the court's jurisdiction to disputes relating to or arising out of employment between employee and employer. The court found that the Employment Act does not define a consultant, and that the Claimant had admitted he was never an appointed employee, had no written contract, ran his own clinic, paid only 5% withholding tax on his fees, enjoyed no leave or employee benefits and was not supervised. The Respondent likewise maintained he was engaged as a consultant on a case-to-case basis. The relationship was therefore consultancy - a pure commercial transaction falling outside the ELRC's jurisdiction. Guided by Daniel N. Mugendi v Kenyatta University on transferring matters to the proper court in the interests of substantial justice, the court transferred the suit to the High Court, holding that any decision by the ELRC would amount to nothing. Costs were to follow the outcome of the main cause. The disposition was signed and delivered at Bungoma on 21st April 2022 by J. W. Keli, Judge.

Key legal issues

#
01

Jurisdiction of the ELRC

Holding

The ELRC's jurisdiction is confined to disputes relating to or arising out of employment between employee and employer under Article 162(2) and Section 12(1) of the ELRC Act

Reasoning

The court invoked Article 162 and Section 12(1) of the Employment and Labour Relations Court Act, which confer exclusive original and appellate jurisdiction over employment and labour relations disputes. Jurisdiction is everything; without it the court must down its tools. The threshold question is whether an employee-employer relationship exists.

p. 2
02

Nature of the Claimant's engagement

Holding

The relationship was consultancy, not employment; the Claimant was a visiting consultant with no written contract, not an appointed employee

Reasoning

The Claimant admitted in evidence that he was not an appointed employee but a visiting consultant who ran his own clinic, with no written contract and only 5% withholding tax deducted from fees. The Respondent likewise stated he was engaged as a consultant on a case-to-case basis. He enjoyed no employee benefits such as leave and was not supervised.

p. 2
03

Consequence of lack of jurisdiction - transfer to High Court

Holding

The suit is a commercial dispute properly before the High Court and is transferred there rather than struck out

Reasoning

Relying on the Court of Appeal's guidance in Daniel N. Mugendi v Kenyatta University, the court held that where a court lacks jurisdiction over a matter belonging to another court, substantial justice requires transfer rather than striking out. Any decision by the ELRC would amount to nothing absent an employee-employer relationship.

p. 3

Legal principles established

#
  • Without jurisdiction a court has no authority to determine a dispute and must down its tools
  • The ELRC's jurisdiction depends on the existence of an employee-employer relationship; disputes arising from consultancy arrangements are commercial disputes outside its jurisdiction
  • Where a court without jurisdiction encounters a matter belonging to another court, it should transfer the matter to the proper court rather than strike it out

Court orders

#
  1. 1.The suit is transferred to the High Court for determination
  2. 2.Costs shall follow the outcome of the main cause

Authorities

#

Legislation

  • Constitution of KenyaArticle 162 (and 162(2), 165(5)(b))
  • Employment and Labour Relations Court ActSection 12(1)
  • Employment ActSections 87, 90, 47(5), 74, 49; definitions of contract of service, employee and employer

Cases cited (3)

  • Owners of Motor Vessel "Lilian S" vs Caltex Oil (Kenya) Ltd
    (1989) eKLR
  • Daniel N. Mugendi vs Kenyatta University & 3 others
    (2013) eKLR
  • Ali Jarso Waku & Another vs Ministry of Interior & Coordination of National Government & 5 others, Public Service Commission & 5 others (interested parties)
    2020 eKLR
Jurisdiction invoked
Article 162 of the Constitution and Section 12(1) of the Employment and Labour Relations Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Apollo Mulianga Ekesa v Life Care Hospitals Limited [2022] KEELRC 217 (KLR)", Case Analysis (2022). Not stated in judgment (Memorandum of Claim dated 12th July, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/217/eng@2022-04-21

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