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ELRCStruck OutNot stated in the judgment

Sadia & another v Rarieda Sub-County Fisheries Officer & 3 others (Petition E028 of 2023) [2024] KEELRC 77 (KLR)

Employment and Labour Relations Court
31 January 2024
RSRadido Stephen
679 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that elected Beach Management Unit officials are not county government employees, so their removal claims cannot go to the Employment Court.

What this practically means

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Executive summary

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The Petitioners, former Chairmen of the Adalo and Wi-Kwang Beach Management Units, petitioned the Employment and Labour Relations Court at Kisumu alleging that the Respondents had illegally removed them from their positions. They asserted an employer/employee relationship with the Respondents, founded on an honorarium they received based on the weight of fish caught and landed, and argued that the letters dated 5th August 2021 amounted to constructive dismissal. They further argued that since the High Court had held it lacked jurisdiction in favour of this Court, the ELRC could not revisit the jurisdictional question. The Respondents denied any employment relationship or payment of honorarium, questioned the registration of Adalo BMU, and contended the Petitioners had not exhausted available dispute resolution mechanisms. The Court traced its jurisdiction to Article 162(1) of the Constitution and section 12 of the ELRC Act, and applied the definition of an employee in section 2 of the Employment Act together with the developed tests of an employment relationship. It found that the Petitioners had not disclosed who paid the honorarium, had not demonstrated control over their performance of duties, and did not enjoy statutory employment rights. Under the Fisheries (Beach Management Unit) Regulations, 2007, the County Government plays only a regulatory role, which cannot create employment with elected BMU officials. The Court therefore declined jurisdiction, struck out the Petition, and made no order as to costs, noting the Respondents had themselves questioned the High Court's jurisdiction.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court has jurisdiction to determine the Petition
  2. 2.Whether the letters dated 5th August 2021 amounted to constructive dismissal
  3. 3.Whether the Petitioners are entitled to the prayers sought
  4. 4.Whether Adola was duly registered hence eligible to have a chairperson
  5. 5.Whether the Petitioners have exhausted available mechanisms for dispute resolution
  6. 6.Whether the Petitioners are entitled to damages
  7. 7.Who should bear the costs of the Petition

Key legal issues

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01

Whether the Court had jurisdiction over the Petition

Holding

The Court declined jurisdiction because no employer/employee relationship was established; the removal of the Petitioners was not an employment or labour dispute.

Reasoning

The Court applied the statutory definition of an employee under the Employment Act and the developed tests for an employment relationship. The Petitioners did not show who paid the honorarium, nor that any Respondent exercised control over their duties or that they enjoyed statutory employment rights. Under the Fisheries (Beach Management Unit) Regulations, 2007, the County Government plays only a regulatory role, which cannot create employment.

p. 3

Legal principles established

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  • A regulatory function exercised by a County Government over Beach Management Units does not create an employment relationship with elected BMU officials

Court orders

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  1. 1.The Court declines jurisdiction and strikes out the Petition
  2. 2.No order on costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

RS
majority

Wrote the judgment

Jurisdiction invoked
Article 162(1) of the Constitution and section 12 of the Employment and Labour Relations Court Act

Relief refused

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All prayers in the Petition, including the claim of constructive dismissal and damages

The Court declined jurisdiction as the suspension or removal of elected Beach Management Unit officials was not an employment or labour-related dispute

p. 3

Costs

No order on costs since the Respondents had also raised the question of the jurisdiction of the High Court.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The suspension and or removal from ofice of the Petitioners was not an employment or labour-related issue as contemplated under the legal framework governing the disputes this Court can entertain.
p. 3Absence of employment dispute
The Regulations and or such a regulatory function do not and cannot create an employment relationship between the oficials of a Beach Management Unit, being elected oficials and a County Government.
p. 3Regulation does not create employment
In light of the above, the Court declines jurisdiction and strikes out the Petition.
p. 3Final orders - striking out
No order on costs since the Respondents had also raised the question of the jurisdiction of the High Court.
p. 3Costs order

Issues in the judgment

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minor

The case title, case number and citation are not stated in the judgment text provided

minor

The judgment refers to 'Adalo' and 'Adola' Beach Management Unit inconsistently

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, "Sadia & another v Rarieda Sub-County Fisheries Officer & 3 others (Petition E028 of 2023) [2024] KEELRC 77 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/77/eng@2024-01-31

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