Serenge v Jok & another (Cause 493 of 2017) [2024] KEELRC 1192 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Limitation of actions under Section 90 of the Employment Act
Cannot be determined summarily because the date of termination is contested
The 1st Respondent relied on the pleaded dismissal date of October 23, 2013, but the Claimant deposed that she only learned of her termination on August 17, 2016 through verbal communication. The court held this is a disputed fact requiring full trial, so the suit could not be struck out as time-barred at the interlocutory stage.
Pecuniary jurisdiction under Gazette Notice No 6024 of June 10, 2018
No objection lies as the Gazette Notice postdated the filing of the suit and the ELRC resolved to conclude pending matters
The Gazette Notice conferring jurisdiction on Senior Resident Magistrates over employment matters where the monthly salary does not exceed Kshs. 80,000 came into force after the suit was filed. The ELRC, which retains residual jurisdiction, made a policy decision that matters already before it would proceed to conclusion.
Jurisdiction over tort claims within an employment dispute
ELRC has full jurisdiction where the alleged wrongs were committed in the course of the employment relationship
The court held that the jurisdictional question depends on the milieu within which the alleged wrongs were committed. Tort claims such as malicious prosecution and defamation arising within an employment relationship fall within the ELRC's mandate and are not a preserve of the High Court.
Joinder of the 2nd Respondent (Embassy)
No cause for removal; the Embassy has not raised the issue and there are procedural remedies
The court noted the 2nd Respondent did not itself raise the issue of joinder. If the court later finds it is not a necessary party, the remedy lies in amendment of the claim or a final order disallowing the claim against it. Diplomatic immunity was already addressed substantively in a ruling dated November 3, 2022.
Legal principles established
#- Where the date of termination of employment is a contested fact, the limitation question under Section 90 of the Employment Act can only be determined at full trial
- Where alleged torts were committed in the course of an employment relationship, the ELRC has jurisdiction to hear and determine the claims
Court orders
#- 1.The 1st Respondent's Notice of Motion dated January 25, 2024 is dismissed
- 2.Costs of the Motion to the Claimant
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution of Kenya, 2010 (Employment and Labour Relations Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Serenge v Jok & another (Cause 493 of 2017) [2024] KEELRC 1192 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1192/eng@2024-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.