Sahani v Ngaira & 3 others (Appeal E229 of 2022) [2023] KEELRC 1637 (KLR)
The bottom line
#Kenya's Employment Court dismissed a challenge to its jurisdiction because the objectors failed to provide the key documents needed to decide the question.
What this practically means
#Executive summary
#Key legal issues
#Whether the preliminary objection on jurisdiction was sustainable as a pure point of law
The objection was not a pure point of law because determining it would require investigating facts, and the underlying pleadings were not before the court; it was dismissed.
The court held that the pleadings used to institute the subordinate-court suit were instrumental to determining whether the dispute fell within section 12 of the ELRC Act. Those pleadings were not availed, so the court could not speculate on the parties' relationships from the application alone. The issue therefore required proof of facts and failed the Mukisa Biscuits test. The respondents also filed no submissions, depriving the court of their arguments on merits of the objection.
Whether the ELRC has jurisdiction over the appeal
The court declined to make a decisive determination on its jurisdiction, holding the question could not be resolved without the CMCC pleadings, and dismissed the objection.
The appellant argued that transfer of an employee is a pure employment and labour issue within the court's jurisdiction under section 12 of the ELRC Act. The court, however, was not privy to the pleadings in CMCC E 6055/2022 and could not determine whether the parties were employees of the respondent. In the absence of concrete evidence, the jurisdictional question was left open and the preliminary objection was dismissed rather than upheld.
Legal principles established
#- A preliminary objection must be a pure point of law; where facts must be investigated or proved, the matter cannot be raised as a preliminary point.
- A court cannot determine its own jurisdiction without the underlying pleadings; absent the pleadings instituting the subordinate-court suit, the jurisdictional question cannot be resolved.
Court orders
#- 1.The preliminary objection is dismissed
- 2.Mention on 31/7/2023 to give directions on the appeal; parties ordered to attempt to sort the matter amicably
- 3.Costs in the cause
- On appeal from
- Subordinate court (CMCC)
- CMCC E 6055/2022
- Jurisdiction invoked
- Section 12 of the Employment and Labour Relations Court Act (No. 20 of 2011)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sahani v Ngaira & 3 others (Appeal E229 of 2022) [2023] KEELRC 1637 (KLR)", Case Analysis (2023). Not stated in the judgment (appeal from CMCC E 6055/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1637/eng@2023-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.