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ELRCDismissedNot stated in excerpt (petition dated 14th July, 2023)· [2023] KEELRC 3379 (KLR)

Siele v County Secretary, Kericho County & 3 others (Employment and Labour Relations Petition E005 of 2023) [2023] KEELRC 3379 (KLR)

Employment and Labour Relations Court
19 December 2023
HWHellen Wasilwa
3,492 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 Court ruled that disputes about an employee's removal are for the ELRC, even when the employer is a county-owned water company.

What this practically means

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Executive summary

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The petitioner, employed as Managing Director of a water company owned 99.99% by the County Government of Kericho, filed a petition and notice of motion on 14th July 2023 seeking conservatory orders restraining the 1st, 2nd and 3rd Respondents from interfering with his employment through a general meeting rather than a board resolution. He alleged the Respondents, new county officials, sought to remove him via a special general meeting convened under Section 139(2) of the Companies Act to place him on administrative leave for 90 days pending investigations, contrary to his rights to fair labour practices and fair administrative action under Articles 41 and 47 of the Constitution. The Respondents raised a preliminary objection contending the petition was sub judice given Constitutional Petition No. E010 of 2023 pending at the Kericho High Court; that the court lacked jurisdiction to interfere with the internal affairs of a company; and that Sections 82 and 121 of the Water Act 2016 oust the court's jurisdiction in favour of WASREB and the Water Tribunal. Relying on Mukisa Biscuits, they urged dismissal. The petitioner countered that the dispute was purely an employment matter within the ELRC's jurisdiction and that the Water Act provisions concern customer disputes. Lady Justice Hellen Wasilwa held that the matter relates to the employment status of the claimant, and that the ELRC assumes jurisdiction over employer-employee disputes under Article 162(2) of the Constitution and Section 12 of the ELRC Act regardless of the employer's nature. She noted the inconsistency of the respondents simultaneously challenging jurisdiction in both courts. The preliminary objection was dismissed and the hearing directed to proceed. No costs order was recorded.

Key legal issues

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01

Whether the ELRC has jurisdiction over an employment dispute involving a water company incorporated under the Water Act

Holding

The ELRC has jurisdiction because the issue relates to the employment status of the petitioner, and the Water Act dispute mechanism does not apply to employment disputes

Reasoning

The court held that the crux of the petition is the petitioner's employment as Managing Director. Jurisdiction under Article 162(2) and Section 12 of the ELRC Act attaches to employer-employee disputes irrespective of the employer's nature. The Water Act dispute provisions were found irrelevant as they concern customers aggrieved by water service providers, not employment matters.

p. 7

Legal principles established

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  • The ELRC assumes jurisdiction where the issue is between an employee and an employer, regardless of whether the employer is a private entity, the state or a company

Court orders

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  1. 1.The preliminary objection raised by the respondents is dismissed for lack of merit
  2. 2.The hearing of the petition to proceed

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 10; Articles 47 and 41; Article 162(2); Article 186(1); Fourth Schedule, Part 2, Paragraph 11(b)
  • Employment Act2007
  • Civil Procedure ActSection 6
  • Water Act2016, Sections 70, 77(1), 82, 121
  • Companies Act2015, Section 139(2)
  • ELRC ActSection 12

Cases cited (10)

  • Mukisa Biscuits Manufacturing Co. Ltd –Vs– West End Distributors
    (1969) E.A. 696
  • Kenya National Commission on Human Rights Vs Attorney General; Independent Electoral & Boundaries Commission & 16 others (Interested Parties)
    [2020] eKLR
  • A. N. N. v R. M. K.
    [2021] eKLR
  • Paolo Muni v Gian Battista Murri & Another
    [2000] eKLR
  • Foss v Harbottle
    (1843) 2 Hare 261
  • Samuel Gutu Macharia & 4 others v Patrick G. Mwangi & 7 others
    [2017] eKLR
  • Re K Boat Service
    [1998] eKLR
  • In re Lemgham Skating Rink Co
    (1877), 5 Ch D 685
  • Cole v RC Irving & Co Ltd and others
    1970(2) ALR Comm 422
  • Augustin Michael Murandi & 2 Others v Nolturesh Loitoktok Water and Sanitation Co. Ltd (Successor in Title of National Water Conservation and Pipeline Conservation)
    [2017] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya and Section 12 of the ELRC Act

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, "Siele v County Secretary, Kericho County & 3 others (Employment and Labour Relations Petition E005 of 2023) [2023] KEELRC 3379 (KLR)", Case Analysis (2023). Not stated in excerpt (petition dated 14th July, 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3379/eng@2023-12-19

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