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ELRCDismissedNot stated in the judgment· [2022] KEELRC 851 (KLR)

Jackline Oichoe v Jilag Limited [2022] KEELRC 851 (KLR)

Employment and Labour Relations Court
7 February 2022
JGJacob Gakeri
1,589 words in judgment
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The bottom line

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Kenya's Employment Court ruled that a Gazette Notice giving salary-based employment cases to magistrates cannot take away the ELRC's own jurisdiction, especially over earlier-filed claims.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection dated 16th December 2021 contending that the Employment and Labour Relations Court lacked jurisdiction to determine the Claimant's memorandum of claim dated 30th November 2017, because Gazette Notice No. 6024 (Vol CXX No. 74) of 22nd June 2018, made under Section 29(3) and (4) of the Employment and Labour Relations Court Act, 2011, conferred jurisdiction on magistrates to hear employment disputes where the employee's gross monthly salary did not exceed Kshs.80,000/-. The Claimant, who earned Kshs.13,000/- per month, had therefore, on the Respondent's case, to sue in the magistrates' court. The Claimant opposed the objection, submitting that the claim was filed on 18th January 2017, long before the Gazette Notice was published, and that Section 12(1) of the ELRC Act conferred jurisdiction on the Court. Applying the Mukisa Biscuit test, the Court framed a single issue: whether it had jurisdiction over the claim. It held that the Gazette Notice was subsidiary legislation subservient to Acts of Parliament and could not amend or curtail the jurisdiction conferred on the ELRC by Article 162(2)(a) of the Constitution and Section 12(1) of the ELRC Act. It further held that the Gazette Notice had no retrospective application, and since the claim was filed more than a year before the Notice, the ELRC was the proper forum. The Court dismissed the preliminary objection with no orders as to costs and directed that the matter be fixed for hearing. The ruling was delivered virtually at Nairobi on 7th February 2022 by Dr. Jacob Gakeri, Judge.

Key legal issues

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01

Jurisdiction of the ELRC vis-à-vis magistrates' courts under Gazette Notice No. 6024

Holding

The Gazette Notice conferring jurisdiction on magistrates did not oust the ELRC's original jurisdiction under Article 162(2)(a) and Section 12(1) of the ELRC Act

Reasoning

The Court held the Gazette Notice is subsidiary legislation subservient to Acts of Parliament and cannot amend the ELRC Act. The Constitution and the Act confer original jurisdiction on the ELRC over employment disputes, and a Gazette Notice inconsistent with the Act cannot curtail that jurisdiction. The magistrates' conferral operated concurrently, not exclusively.

p. 2
02

Retrospective application of Gazette Notice No. 6024

Holding

The Gazette Notice had no retrospective application and therefore did not govern a claim filed on 18th January 2017, before its publication

Reasoning

Although Section 28 of the Interpretation and General Provisions Act permits retrospective subsidiary legislation, the Gazette Notice did not purport to operate retrospectively. The powers under Section 29(3) had not been exercised before 22nd June 2018, so the Claimant could not have filed in a Magistrates Court before that date.

p. 3

Legal principles established

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  • A Gazette Notice being subsidiary or delegated legislation is subservient to Acts of Parliament and cannot purport to amend an Act of Parliament
  • Conferal of jurisdiction on magistrates by Gazette Notice does not take away the jurisdiction conferred on the Employment and Labour Relations Court by the Constitution and the ELRC Act

Court orders

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  1. 1.The Preliminary Objection dated 16th December 2021 is dismissed
  2. 2.No orders as to costs
  3. 3.The matter shall be fixed for hearing

Authorities

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Legislation

  • Constitution of Kenya 2010Article 162(2)(a), 162(3), 159(2)(d), 48
  • Employment and Labour Relations Court Act, 2011Section 12(1)(a), Section 29(3) and (4)
  • Interpretation and General Provisions ActSection 28
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (3)

  • Juliana Katini Mdari v Mastermind Tobacco Kenya Limited
    [2020] eKLR
  • Mukisa Biscuit Manufacturing Company Limited v West End Distributors Limited
    [1969] E.A. 696
  • The Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    [1989] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya 2010 and Section 12(1) of the Employment and Labour Relations Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jackline Oichoe v Jilag Limited [2022] KEELRC 851 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/851/eng@2022-02-07

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