Kamau v Gichana & another (Petition E073 of 2021) [2023] KEELRC 1769 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the objection raised a pure point of law qualifying as a Preliminary Objection
The objection met the threshold as it challenged the court's jurisdiction
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.
Whether the ELRC has jurisdiction over the petition
The court had no jurisdiction; the petition was not an employment and labour relations dispute
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.
Sources and limits of the ELRC's jurisdiction
Jurisdiction derives from the Constitution and statute; Parliament determines the jurisdiction of courts under Article 162(2)
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.
Legal principles established
#- 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
#- 1.The 2nd Respondent's Preliminary Objection dated 24th April, 2023 is merited and is allowed
- 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)
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.