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ELRCDismissedNot stated in judgment· [2022] KEELRC 1491 (KLR)

Atelo v Valentines Education Limited (Cause 760 of 2017) [2022] KEELRC 1491 (KLR)

Employment and Labour Relations Court
2 June 2022
ANAGNES KITIKU NZEI
776 words in judgment
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The bottom line

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Kenya's Employment Court ruled that a 2018 Gazette Notice shifting low-salary employment cases to magistrates cannot apply to lawsuits filed earlier.

What this practically means

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Executive summary

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The Claimant instituted a Memorandum of Claim on 21st September 2017 alleging unlawful and unprocedural termination of her fixed-term employment on 19th April 2017, and seeking compensation for unlawful termination, unpaid April 2017 salary, pro-rated leave, house allowance, one month's salary in lieu of notice, damages for breach of contract, and a Certificate of Service. The Respondent filed no pleadings but raised a Preliminary Objection dated 22nd October 2021, contending that the Court lacked jurisdiction by virtue of Sections 29(3) and 4(b) of the Employment and Labour Relations Court Act, 2011 and Gazette Notice No. 6024 of 2018, under which the Chief Justice appointed magistrates of the rank of Senior Resident Magistrate and above to hear employment cases where the employee's gross salary does not exceed Kshs 80,000. The Court, considering Section 12(1) of the Act, held that the Gazette Notice published long after the suit was instituted could not take away the Court's exclusive jurisdiction, nor did it amount to an amendment of Section 12(1). The Court retains unfettered jurisdiction and discretion to try such suits or refer them to the Magistrates' Courts; given that the parties had waited over four years, the suit had to be heard without further delay. The Preliminary Objection was overruled and dismissed with no order as to costs, and the suit was set down for mention on 9th June 2022 for fixing of a hearing date.

Key legal issues

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01

Whether the ELRC retains jurisdiction over a suit filed before Gazette Notice No. 6024 of 2018 designated magistrates to hear employment disputes where gross salary does not exceed Kshs 80,000

Holding

The Preliminary Objection was overruled. The Gazette Notice did not amend Section 12(1) or oust the Court's exclusive jurisdiction, and could not apply retrospectively to a suit filed in 2017.

Reasoning

Section 12(1) of the Employment and Labour Relations Court Act confers exclusive original and appellate jurisdiction over employment disputes. Section 29(3) merely permits the Chief Justice to appoint magistrates to preside over such cases. The Gazette Notice published in 2018, after the suit was instituted in September 2017, does not amount to an amendment of Section 12(1) and cannot take away the Court's jurisdiction. The Court retains discretion to try or refer such suits, and given the four-year delay, the suit must proceed before it.

p. 2

Legal principles established

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  • A Gazette Notice designating magistrates to hear employment disputes does not divest the ELRC of its exclusive jurisdiction under Section 12(1) of the Act; the Court retains discretion to try the suit or refer it to the Magistrates' Courts.
  • The Gazette Notice applies prospectively; suits filed before its publication remain within the ELRC's jurisdiction.

Court orders

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  1. 1.The Preliminary Objection dated 22nd October 2021 is overruled and dismissed with no order as to costs
  2. 2.The suit to be mentioned in Court on 9/6/2022 for fixing of a hearing date

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)
  • Employment and Labour Relations Court Act, 2011Section 12(1)
  • Employment and Labour Relations Court Act, 2011Section 29(3)
  • Gazette Notice No. 6024 of 2018Designation of magistrates for employment and labour relations cases
Jurisdiction invoked
Article 162(2) of the Constitution 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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Cite this brief

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Cite this brief

Caselaw, "Atelo v Valentines Education Limited (Cause 760 of 2017) [2022] KEELRC 1491 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1491/eng@2022-06-02

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