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ELRCDismissedELRC Cause (Nairobi), Memorandum of Claim dated 15th September 2017· [2023] KEELRC 2470 (KLR)

Kivevenze v Principal Secretary Ministry of Defence & 2 others (Cause 1921 of 2017) [2023] KEELRC 2470 (KLR)

Employment and Labour Relations Court
16 October 2023
JGJACOB GAKERI
2,394 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a former soldier's unfair dismissal claim because the Employment Act doesn't apply to Kenya Defence Forces personnel.

What this practically means

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Executive summary

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The Claimant, a former Kenya Defence Forces radio technician enlisted on 24th April 1984 who rose to Senior Sergeant and served 31 years, claimed unfair dismissal. He was charged before his Commanding Officer under the Kenya Defence Forces Act, 2012 for allegedly aiding Corporal Joseph Muthui to defraud members of the public by pretending to recruit their children into the Kenya Police Service, and was dismissed. He sought a declaration of wrongful and unfair dismissal, reinstatement or, in the alternative, gratuity of Kshs 3,500,000, leave allowances, monthly pension, 12 months' compensation, a long service medal in monetary form and damages. The Respondent admitted the dismissal but justified it as a lawful summary trial under section 156 of the Kenya Defence Forces Act, asserting the Claimant chose trial by the Commanding Officer and that, once dismissed for a grave offence, he was not entitled to benefits under the Pension Regulations. The court framed three issues, beginning with jurisdiction. Relying on section 3(2)(a) of the Employment Act, 2007, which excludes the Kenya Defence Forces from the Act, and following Paul K Langat v Kenya Defence Forces 9th Battalion, Dr. Jacob Gakeri, Judge, held that since the action was grounded on the Employment Act the court had no jurisdiction and downed its tools. The suit was dismissed for want of jurisdiction without determining the fairness of the dismissal, with each party bearing their own costs. The court noted the Claimant could invoke jurisdiction under the Kenya Defence Forces Act, the Constitution or other law, but not the Employment Act.

Key legal issues

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Whether the ELRC has jurisdiction over an employment claim by a former Kenya Defence Forces service member grounded on the Employment Act

Holding

The court held it had no jurisdiction because section 3(2)(a) of the Employment Act, 2007 excludes the Kenya Defence Forces from the Act's application, and the claim was grounded on that Act

Reasoning

The court reiterated that jurisdiction is derived from the Constitution or an Act of Parliament. Section 3(2)(a) of the Employment Act expressly excludes the Kenya Defence Forces. Following Paul K Langat v Kenya Defence Forces 9th Battalion, the judge found that a KDF officer must invoke jurisdiction under the Kenya Defence Forces Act, the Constitution or other law, but not the Employment Act. Since the claim was grounded on the Employment Act, the suit was dismissed for want of jurisdiction and the remaining issues were left undetermined.

p. 6

Legal principles established

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  • A court derives its jurisdiction from the Constitution or an Act of Parliament or both and can only exercise jurisdiction conferred on it by law
  • By dint of section 3(2)(a) of the Employment Act, 2007, that Act does not apply to the Kenya Defence Forces, and claims framed under it against the KDF fall outside the court's jurisdiction

Court orders

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  1. 1.The suit is dismissed for want of jurisdiction
  2. 2.Parties shall bear their own costs
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction; suit grounded on the Employment Act, 2007, which by section 3(2)(a) does not apply to the Kenya Defence Forces

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, "Kivevenze v Principal Secretary Ministry of Defence & 2 others (Cause 1921 of 2017) [2023] KEELRC 2470 (KLR)", Case Analysis (2023). ELRC Cause (Nairobi), Memorandum of Claim dated 15th September 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2470/eng@2023-10-16

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