Tiko v County Secretary, Siaya County Government & 4 others (Petition E011 of 2022) [2022] KEELRC 1494 (KLR)
The bottom line
#A Kenyan court struck out a dismissed water company director's petition, confirming directors without salaries aren't employees and must first use contractual arbitration.
What this practically means
#Executive summary
#Key legal issues
#Whether a director of a water company is an employee for purposes of the court's jurisdiction
The petitioner was not an employee; the appointment letter expressly excluded an employment relationship and provided for meeting allowances, not salary, so the court declined jurisdiction
The court noted inconsistent decisions of judges of the same court. It reviewed Asanyo (holding a water company director was an employee), and Marakia and Randu (holding otherwise). Applying the Eaton tests and section 2 of the Employment Act, it found the petitioner's own documents acknowledged she was not an employee; clause 8 of the appointment letter expressly excluded a contract of employment and remuneration was by meeting allowances, not salary. It endorsed the last two decisions.
Whether the petition was premature for failure to exhaust alternative dispute resolution mechanisms
The petition was premature because article 135 of the articles of association established arbitration as the first-instance dispute resolution avenue and the petitioner did not attempt to use it
Article 135 of the articles of association establishes arbitration, guided by the Arbitration Act, as the first-instance avenue for disputes between the Water company and its directors. The petitioner never attempted to invoke that avenue before filing the petition, so the objection on exhaustion under section 9 of the Fair Administrative Actions Act prevailed.
Legal principles established
#- A director of a water company, appointed under memorandum and articles of association and paid meeting allowances rather than salary, is not an employee for purposes of the Employment Act and the court's jurisdiction
- A contractual arbitration clause establishing arbitration as the first-instance dispute resolution avenue must be exhausted before approaching the court
Court orders
#- 1.The petition is struck out with no order on costs
- Jurisdiction invoked
- Constitutional petition invoking fair administrative action rights; court examined its jurisdiction under the Employment Act and related employment and labour relations law
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tiko v County Secretary, Siaya County Government & 4 others (Petition E011 of 2022) [2022] KEELRC 1494 (KLR)", Case Analysis (2022). Petition dated 22 February 2022 (Constitutional Petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1494/eng@2022-06-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.