Rukaria v Attorney General; Debasso & another (Interested Parties) (Petition 2 of 2023) [2023] KEELRC 1339 (KLR)
The bottom line
#Kenya's Employment Court ruled that a sacked state corporation chairperson can sue as an employee, so the case must be fully heard rather than struck out.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELRC has jurisdiction over a dispute concerning revocation of a state corporation chairperson's appointment
The dispute relates to employer-employee relationship; a chairperson of a statutory state corporation is a public/state officer, so the preliminary objection on jurisdiction fails.
The Court distinguished Rift Valley Water Services Board, which concerned a director of a Companies Act company governed by its Memorandum and Articles. Here the petitioner chaired a statutory body under the State Corporations Act. Following Omtatah and Narok County Government v Birir, public officers are servants of the people, governed by constitutional and statutory employment provisions, so the dispute falls within the Court's employment jurisdiction.
Whether honorarium and allowances negate an employment relationship
Payments such as honorarium and sitting allowances may actually support employee status; in any event the question is one of mixed fact and law for the full hearing.
The 1st interested party argued the petitioner only earned an honorarium and allowances per Government rates. The Court reasoned such payments may qualify the petitioner as an employee on piece-work rates, arrangements familiar in employment relationships, and the petitioner exhibited payslips. These are disputed facts requiring evidence at full hearing, so the objection cannot succeed as a pure point of law.
Whether the preliminary objections raise a pure point of law
No; the objections depend on disputed facts (existence of employer-employee relationship) and so fail under the Mukisa Biscuit test.
Relying on the petitioner's submissions, the Court applied the principle that a preliminary objection must rest on undisputed facts or on the assumption that pleaded facts are correct. Since the existence of an employment relationship was disputed and the petitioner exhibited payslips, the objection was of mixed fact and law and could not be determined summarily.
Legal principles established
#- A preliminary objection must be based on a pure point of law on undisputed facts or on the assumption that pleaded facts are correct.
- Board members and chairpersons of state corporations are public/state officers engaged in public employment governed by constitutional and statutory provisions, distinguishing them from directors of Companies Act companies.
- Whether an employer-employee relationship exists may be a disputed point of fact requiring a full hearing rather than summary striking out.
Court orders
#- 1.The preliminary objections are dismissed with costs in the cause
- 2.Parties to take directions for the expeditious hearing and determination of the petitioner's application or the main petition as directions may issue
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rukaria v Attorney General; Debasso & another (Interested Parties) (Petition 2 of 2023) [2023] KEELRC 1339 (KLR)", Case Analysis (2023). Petition No 2 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1339/eng@2023-05-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.