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ELRCStruck OutCause No E330 of 2023· [2023] KEELRC 2330 (KLR)

Letangule & another v Chief Executive Officer - National Heath Insurance Fund & 2 others (Cause E330 of 2023) [2023] KEELRC 2330 (KLR)

Employment and Labour Relations Court
2 October 2023
3,269 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court struck out an employee suit filed before internal grievance procedures were exhausted, confirming workplace appeals must finish first.

What this practically means

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Executive summary

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The 2nd Respondent raised a Notice of Preliminary Objection dated 8th May 2023 against the Claimants' two Memorandums of Claim and Application dated 19th April 2023, contending that the court lacked jurisdiction because the suit was prematurely filed in violation of Section 9(2) and (3) of the Fair Administrative Action Act and Clause 13.2 of the Human Resource Manual, and that filing two Memorandums of Claim under one serial number violated the ELRC (Procedure) Rules, 2016. The Claimants opposed through Replying Affidavits, relying on Mukisa Biscuits to argue the objection raised factual issues, and urged exceptional circumstances justifying judicial intervention. The court framed three issues and found the objection met the Mukisa Biscuits threshold. On exhaustion, the court found the Claimants were transferred on 3rd April 2023, appealed on 6th April 2023, but filed suit on 19th April 2023 before the Acting Chief Executive Officer determined the appeals. The 12-13 day delay was held not inordinate, and the Claimants neither appealed to the Fund as required by Clause 13.2.9 nor demonstrated exceptional circumstances under Section 9(4) or the Krystalline Salt and Ramogi criteria. On procedure, the court held that filing two Memorandums of Claim and a joint Notice of Motion under one serial number, without a representative mandate, was irregular. The suit was struck out with no orders as to costs.

Key legal issues

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01

Whether the Notice of Preliminary Objection met the Mukisa Biscuits threshold

Holding

It did, as it raised pure points of law on jurisdiction and procedure

Reasoning

Applying Law JA's formulation in Mukisa Biscuits, the court found that the objection to jurisdiction premised on premature invocation and the objection on competence of pleadings grounded under two memorandums were pure points of law capable of disposing of the suit withoutascertaining facts.

p. 4
02

Whether the Claimants violated the doctrine of exhaustion of internal grievance mechanisms

Holding

Yes; the suit was premature

Reasoning

The Claimants appealed transfers by letters dated 6th April 2023 but filed suit on 19th April 2023 before the Acting Chief Executive Officer determined the appeals, and neither appealed to the Fund/Board as required by Clause 13.2.9 of the Human Resource Manual. The 12-13 day delay by the CEO was not inordinate, and no exceptional circumstances under Section 9(4) FAAA or Krystalline Salt were demonstrated.

p. 7
03

Whether filing two Memorandums of Claim under one serial number violated the ELRC (Procedure) Rules, 2016

Holding

Yes; the suit as filed was irregular

Reasoning

Rule 4(1) ordains a statement of claim for a single dispute; the Claimants filed two Memorandums of Claim under one serial number and a joint Notice of Motion combining both claims, with no letter of authority making either claim representative. Counsel did not explain the filing. The court held the suit irregular and requiring rectification.

p. 8

Legal principles established

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  • A preliminary objection consists of a pure point of law which, if argued as a preliminary point, may dispose of the suit
  • Where a dispute resolution mechanism exists outside courts, it must be exhausted before the court's jurisdiction is invoked; courts are fora of last resort
  • Section 9(2) and (3) of the Fair Administrative Action Act are mandatory; a party seeking to bypass internal remedies must demonstrate exceptional circumstances under Section 9(4)
  • Organizational Human Resource instruments bind employees during employment and must be complied with

Court orders

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  1. 1.The suit is struck out with no orders as to costs.

Authorities

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Legislation

  • Fair Administrative Action ActSection 2; Section 9(1), (2), (3) and (4)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rules 2, 4(1), 9, 10(5), 13(1)
  • Constitution of KenyaArticle 159

Cases cited (7)

  • Mukisa Biscuits Manufacturing Co. Ltd V West End Distributors Ltd
    (1969) EA 696
  • Independent Electoral and Boundaries Commission V Jane Cheperenger & 2 others
    (2015) eKLR
  • Aviation and Allied Workers Union Kenya V Kenya Airways Ltd & others
    (2015) eKLR
  • Jamii Bora Kenya Ltd V Esther Wairimu Mbugua & another
    (2019) eKLR
  • Geofirey Muthinja & another V Samuel Muguna Henry & 1756 others
    (2015) eKLR
  • Krystalline Salt Ltd V Kenya Revenue Authority
    (2019) eKLR
  • William Odhiambo Ramogi & 3 others V Attorney General & 4 others
    (2020) eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court (Procedure) Rules, 2016 and the Fair Administrative Action Act, 2015 (Section 9) invoked in a first-instance cause

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, "Letangule & another v Chief Executive Officer - National Heath Insurance Fund & 2 others (Cause E330 of 2023) [2023] KEELRC 2330 (KLR)", Case Analysis (2023). Cause No E330 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2330/eng@2023-10-02

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