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 the judgment as provided· [2023] KEELRC 718 (KLR)

Simiyu v Cabinet Secretary, Ministry of Energy & another; Rural Electrification & Renewable Energy Corporation & another (Interested Parties) (Petition 169 of 2022) [2023] KEELRC 718 (KLR)

Employment and Labour Relations Court
17 March 2023
AMAnna N. Mwaure
1,767 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court ruled board members aren't employees, so it lacked jurisdiction to hear the challenge and sent the case back to the High Court.

What this practically means

#

Executive summary

#
The petition challenged Gazette Notice No 4497 dated 14th April 2022 by which the President purported to appoint Wacuka Ikua as Chairperson of the Rural Electrification & Renewable Energy Corporation's Board for three years, together with subsequent Gazette Notices amending the appointments. The petitioner contended that the Cabinet Secretary could appoint only three board members under section 45(1)(e) of the Energy Act, 2019, that the Council of Governors should appoint four members under section 45(1)(f), and that the appointments failed the constitutional demand for merit-based, competitive and transparent recruitment in public service. The suit was initially filed in the High Court, which granted interim orders but transferred it to the Employment and Labour Relations Court for want of jurisdiction. Before ruling, the ELRC judge suo motu examined whether a board member is an employee within the meaning of section 2 of the Employment Act, 2007. Applying the Court of Appeal's decision in Rift Valley Water Services Board vs Asanyo, the court held that a board member who receives allowances but no wages or salary is not an employee. Consequently, the dispute was not an employment and labour relations dispute under section 12 of the Employment and Labour Relations Court Act, and the court had no jurisdiction ab initio, since jurisdiction cannot be conferred by consent. The court declined to determine the petition and transferred it back to the Principal Judge of the High Court for further directions, including directions on the ELC ruling of 23rd August 2022, with each party bearing its own costs.

Key legal issues

#
01

Whether a board member is an employee under the Employment Act, 2007

Holding

A board member is not an employee; they receive allowances for expenses, not wages or salary, and do not work under a contract of service

Reasoning

Section 2 of the Employment Act defines an employee as a person employed for wages or salary, including an apprentice or indentured learner. Board members sit to deliberate on organisational matters when called upon, and while state corporations may pay allowances for travel, accommodation and subsistence, such allowances do not constitute wages or salary under a contract of service. The court adopted the Court of Appeal's holding in Rift Valley Water Services Board that a director is not an employee.

p. 3
02

Whether the ELRC has jurisdiction over a petition challenging presidential appointment of a board chairperson and board members

Holding

The ELRC lacks jurisdiction because the dispute does not relate to employment and labour relations between an employer and an employee

Reasoning

Section 12 of the Employment and Labour Relations Court Act confers exclusive original and appellate jurisdiction over disputes relating to employment and labour relations under Article 162(2) of the Constitution. Since board members are not employees, a dispute over their appointment is not an employment dispute. Jurisdiction being everything, a court without it must down its tools, and the matter cannot proceed even if the parties consent.

p. 4

Legal principles established

#
  • A member of a board of directors is not an employee of the organisation within the meaning of section 2 of the Employment Act, 2007
  • A court without jurisdiction must down its tools at once; jurisdiction cannot be conferred by consent of the parties

Court orders

#
  1. 1.The petition to be transferred back to the Principal Judge in the High Court for further directions and directions as to the orders given by the ELRC court ruling dated 23rd August 2022
  2. 2.Each party to bear their own costs

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 152, 156, 159(2)(d), 162(2), 48
  • Energy Act, No 1 of 2019Section 45(1)
  • Employment Act, 2007Section 2
  • Employment and Labour Relations Court ActSection 12
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (4)

  • Rift Valley Water Services Board and 3 Others vs Geofirey Asanyo and 2 Others
    Civil Appeal No 60 of 2015
  • Owners of Motor Vessel Lillian "S" vs Caltex Oil Kenya Limited
    [1989] KLR
  • Constantine Joseph Advocates vs the Hon The Attorney General
    Petition No 268 of 2021
  • Jamal Salim vs Yusuf Abdulaihu Abdi & Another
    Civil Appeal No 103 of 2016 (2018) eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act and Article 162(2) of the Constitution

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (3)

#

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

Cite this brief

#

Cite this brief

Caselaw, "Simiyu v Cabinet Secretary, Ministry of Energy & another; Rural Electrification & Renewable Energy Corporation & another (Interested Parties) (Petition 169 of 2022) [2023] KEELRC 718 (KLR)", Case Analysis (2023). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/718/eng@2023-03-17

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