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ELRCPartially AllowedPetition No E073 of 2021· [2023] KEELRC 1769 (KLR)

Kamau v Gichana & another (Petition E073 of 2021) [2023] KEELRC 1769 (KLR)

Employment and Labour Relations Court of Kenya
25 July 2023
3,491 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Employment and Labour Relations Court struck out a petition against the Nairobi County Assembly because disputes outside employment matters belong elsewhere.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually on 25th July 2023 by Dr. Jacob Gakeri J, determined a Preliminary Objection dated 24th April 2023 by the 2nd Respondent against a Petition filed on 21st April 2021. The objection contended that the court lacked jurisdiction under Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, 2011, relying principally on the Court of Appeal decision in Clerk, Nakuru County Assembly V Kenneth Odongo (Civil Appeal No. E136 of 2022). The 2nd Respondent argued there was no employer/employee relationship between the Petitioner and it, and that the petition was res judicata, re-litigating ELRC Petition No. 194 of 2019 and No. 71 of 2020. The 1st Respondent supported the objection. The Petitioner, relying on Article 22 and Article 258, contended standing was liberalised, that the Clerk's appointment in violation of court orders created an employment relationship, and that the Nakuru decision was distinguishable. Applying Mukisa Biscuits, the court held the objection was a pure point of law. Guided by the Court of Appeal's ruling that ELRC jurisdiction is confined to employment and labour relations disputes, and by Owners of the Motor Vessel Lillian S and Republic V Karisa Chengo, the court found it common ground that the Petitioner was not an employee of the 2nd Respondent and that the gravamen of the petition - alleged violation of court orders in appointing the 1st Respondent as Clerk - was remediable by contempt proceedings, not an employment dispute. The court therefore downed its tools, allowed the Preliminary Objection, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the objection raised a pure point of law qualifying as a Preliminary Objection

Holding

The objection met the threshold as it challenged the court's jurisdiction

Reasoning

Applying Mukisa Biscuits, a preliminary objection is a pure point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit. Since the 2nd Respondent challenged the court's jurisdiction to entertain the petition, the objection qualified under the established test.

p. 4
02

Whether the ELRC has jurisdiction over the petition

Holding

The court had no jurisdiction; the petition was not an employment and labour relations dispute

Reasoning

Guided by the Court of Appeal in Clerk, Nakuru County Assembly V Kenneth Odongo, jurisdiction under Article 162(2) and Section 12(1) is confined to employment and labour disputes. The petitioner was not an employee of the 2nd Respondent, and the complaint - appointment of the Clerk in violation of court orders - was remediable by contempt proceedings, not an employment dispute. By parity of reasoning with Civil Appeal No. E136 of 2022, jurisdiction was absent.

p. 6
03

Sources and limits of the ELRC's jurisdiction

Holding

Jurisdiction derives from the Constitution and statute; Parliament determines the jurisdiction of courts under Article 162(2)

Reasoning

Relying on Samuel Kamau Macharia and Republic V Karisa Chengo, a court's jurisdiction flows from the Constitution or legislation. Article 162(3) mandates Parliament to determine the jurisdiction of the employment court, and specialised courts' jurisdictions are limited to matters provided for in their statutes.

p. 7

Legal principles established

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  • Jurisdiction of the ELRC is limited to matters relating to employment and labour relations as defined by Article 162(2) of the Constitution and Section 12(1) of the ELRC Act, 2011
  • A court without jurisdiction must down its tools at once
  • Any dispute outside Section 12(1) of the ELRC Act, even if allegedly for connected purposes, does not confer jurisdiction

Court orders

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  1. 1.The 2nd Respondent's Preliminary Objection dated 24th April, 2023 is merited and is allowed
  2. 2.The petition is struck out for want of jurisdiction (the court downed its tools for want of jurisdiction to hear and determine the petition)

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2), 162(2)(a), 162(3), 22(1) and (2), 258, 159(2)(d), 48
  • Employment and Labour Relations Court Act, 2011Sections 2, 12(1), 12(2), preamble
  • County Government ActSections 8, 13, 14, 18
  • Employment ActSection 12 (as cited in submissions)
  • Civil Procedure ActSection 7, Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (21)

  • Clerk of Nakuru County Assembly & 2 others V Kenneth Odongo & 3 others
    Civil Appeal No. E136 of 2022
  • Okiya Omtatah Okoiti & another V Attorney General & 2 others
    (2015) eKLR
  • Nick Githinji Ndichu V Clerk, Kiambu County Assembly & another
    (2014) eKLR
  • Gavin Romeo Castro V The Clerk, Nairobi City County Assembly & another
  • Njangu V Wambugu & another
    NRB HCCC No. 2340 of 1991
  • Republic V Attorney General and another ex parte James Alfred Koroso
  • Uhuru Highway Development Ltd V Central Bank of Kenya Exchange Bank Ltd (In Liquidation) & Kamlesh Mansukhlal Pattni
  • Samuel Kamau Macharia & another V Kenya Commercial Bank Ltd & 2 others
    (2012) eKLR
  • Matter of the Interim Independent Electoral Commission
    No. 2 of 2011
  • Karianjahi Waiganjo V Attorney General & 4 others
    (2013) eKLR
  • R V Greater London Council ex parte Blackburn
    (1976) 3 All ER 184
  • Clerk of Nairobi County Assembly V Speaker Nairobi County Assembly & another
    NRB Civil Appeal No. E255 of 2021
  • Edward Obwori Gichana
    Civil Application No. E305
  • Lillian Njeri Muranja V Virginia Nyambura Ndiba and another
    (2014) eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd V West End Distributors Ltd
    (1969) EA 696
  • John Musakali V Speaker County Assembly of Bungoma
    (2015) eKLR
  • Oraro V Mbaja
    (2005) eKLR
  • Republic V Karisa Chengo & another
    (2017) eKLR
  • Attorney General and 2 others V Okiya Omtata Okoiti and 14 others
    (2020) eKLR
  • National Social Security Fund Board of Trustees V Kenya Tea Growers Association and 14 others
    (2023) eKLR
  • Owners of the Motor Vessel "Lillian S" V Caltex Oil (K) Ltd
    (1989)
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya, 2010 and Section 12 of the Employment and Labour Relations Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kamau v Gichana & another (Petition E073 of 2021) [2023] KEELRC 1769 (KLR)", Case Analysis (2023). Petition No E073 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1769/eng@2023-07-25

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