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ELRCStruck OutPetition (ELRC)· [2023] KEELRC 2278 (KLR)

Kenya National Union of Nurses v Local Authorities Provident Fund Board & 4 others; Kiuluku & 8 others (Interested Parties) (Petition E005 of 2023) [2023] KEELRC 2278 (KLR)

Employment and Labour Relations Court
29 September 2023
BMB. O. M. Manani
1,680 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment and Labour Relations Court struck out the nurses' union's challenge to pension fund board appointments because the dispute wasn't employment-related.

What this practically means

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Executive summary

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The Petitioner, a trade union representing nurses, challenged appointments made by the 2nd Respondent to the Board of the 1st Respondent (the Local Authorities Provident Fund Board), arguing that as representatives of nurses who are major contributors to the Fund managed by the Board, they ought to have been consulted. The Respondents raised a preliminary objection contending that the dispute does not fall within the jurisdiction of the Employment and Labour Relations Court under section 12 of the ELRC Act and Article 162(2) of the Constitution, as it concerns the constitution of the Board of a Trust Fund rather than an employment dispute. The Petitioner countered that section 12 should be read expansively, citing the word 'including' and the Lapfund v Kisii County Government decision. Applying the Court of Appeal's recent decision in NSSF Board of Trustees v Kenya Tea Growers Association, the court held that ELRC jurisdiction is strictly confined to disputes founded on an employment relation or ancillary to section 12 matters. The question of the Board's composition did not arise from an employment relation, and its impact on workers' interests could not confer jurisdiction. The word 'including' in section 12 could not stretch jurisdiction beyond employment-related matters. Concluding it lacked jurisdiction, the court struck out the Petition with costs to the Respondents on 29 September 2023.

Key legal issues

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01

Whether the dispute over the constitution of the LAPFUND Board is an employment and labour relations dispute within section 12 of the ELRC Act

Holding

No - the dispute has no foundation in an employment relation and is not ancillary or incidental to section 12(1) matters; the ELRC lacks jurisdiction

Reasoning

By parity of reasoning with the Court of Appeal's decision in NSSF v Kenya Tea Growers Association, a dispute does not become an employment and labour relations dispute merely because it affects workers as contributors to a fund. The central question was the legality of Board appointments, which does not arise from an employment relation between the disputants and therefore falls outside the ELRC's jurisdiction.

p. 4
02

Whether the word 'including' in section 12 of the ELRC Act opens the ELRC's jurisdiction to disputes beyond employment relations

Holding

No - the word only brings on board matters arising from an employment relation

Reasoning

Following the Court of Appeal in the NSSF case, the Petitioner's argument that 'including' renders the section 12 list non-exhaustive was rejected; the word cannot be used to unduly stretch the ELRC's jurisdiction beyond employment-related matters.

p. 4

Legal principles established

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  • The ELRC's jurisdiction is strictly confined to disputes founded on an employment relation or ancillary/incidental to matters under section 12(1) of the ELRC Act; impact on workers' welfare alone does not confer jurisdiction

Court orders

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  1. 1.The Petition is struck out with costs to the Respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Schedule 4
  • Constitution of Kenya 2010Article 162(2)
  • Constitution of Kenya 2010Article 165(3)
  • Local Authorities Provident Fund ActSection 5
  • County Governments' Retirement Scheme ActSections 51
  • County Government ActSection 132
  • Employment and Labour Relations ActSection 12(1)
  • National Social Security Fund Act (NSSF Act)constitutionality of
  • ELRC Procedure RulesRule 28(3)

Cases cited (6)

  • Okoiti & 11 others v County Governments Retirement Scheme & 164 others; County Pension Fund Financial Services Limited & 8 others (Interested Parties)
    [2022] KEELRC 13584 (KLR)
  • Local Authorities Provident Fund Board (Lapfund) v Kisii County Government
    [2018] eKLR
  • National Social Security Fund Board of Trustees v Kenya Tea Growers Association & 14 others
    (Civil Appeal 656 of 2022) [2023] KECA 80 (KLR)
  • Attorney General & 2 others v Okiya Omtata Okoiti & 14 others
    [2020] eKLR
  • United States International University (USIU) v The Attorney General & Others
    [2012] eKLR
  • Daniel N. Mugendi v Kenyatta University & 3 Others
    [2013] eKLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Act read with Article 162(2) of the Constitution

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, "Kenya National Union of Nurses v Local Authorities Provident Fund Board & 4 others; Kiuluku & 8 others (Interested Parties) (Petition E005 of 2023) [2023] KEELRC 2278 (KLR)", Case Analysis (2023). Petition (ELRC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2278/eng@2023-09-29

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