Mburu v KPMG Kenya (Cause 690 of 2017) [2023] KEELRC 97 (KLR)
The bottom line
#Kenya's Employment Court ruled it cannot hear a defamation claim just because it arose at work, sending the case back to the High Court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction of the ELRC over a defamation claim against an audit firm
The Court lacks jurisdiction because the dispute concerns defamation arising from a forensic audit report, not employment and labour relations.
Although the suit was transferred to the ELRC by order of Mbogholi Msagha J in 2017 and the respondent did not seek review of that order, the court examined the pleadings and found the crux of the claim was malicious publication of a forensic investigation report by an audit firm. The claimant had not challenged his termination in this suit; the report merely contributed to it. The subject matter therefore bore no bearing on employment and labour relations under Article 162(2)(a) and section 12 of the ELRC Act.
Effect of prior transfer order and absence of review
The absence of a review of the transfer order did not confer jurisdiction where the subject matter falls outside the Court's mandate.
The court noted the respondent never sought review of the 2017 transfer order, but held that jurisdiction is conferred by law, not by acquiescence in a transfer. Having found the dispute concerned defamation/libel against an audit firm rather than an employment relationship, the court concluded the matter fell outside its jurisdiction and remitted it to the High Court.
Limitation of the defamation claim
Not determined on the merits; the objection succeeded on jurisdiction alone.
The second ground of the preliminary objection - that the defamation claim was time barred under section 4(2) of the Limitation of Actions Act - was raised but the court disposed of the objection on the jurisdictional ground without making findings on limitation. The court remitted the matter to the High Court where all issues, including limitation, fall to be determined.
Legal principles established
#- A court must satisfy itself that the subject matter of a dispute falls within its jurisdiction as conferred by Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act, regardless of how the matter was transferred to it.
- Where a court lacks jurisdiction over a matter, the proper course is to transmit it to the court clothed with the requisite jurisdiction rather than dismiss it.
Court orders
#- 1.The Respondents' preliminary objection dated July 27, 2022 is sustained
- 2.The matter to be transmitted back to the High Court for hearing and determination
- 3.The matter to be placed for further directions before the Presiding Judge, Civil Division, High Court
- 4.No orders as to costs
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mburu v KPMG Kenya (Cause 690 of 2017) [2023] KEELRC 97 (KLR)", Case Analysis (2023). Cause No 690 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/97/eng@2023-01-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.