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ELRCDismissedNot stated in the judgment as provided· [2024] KEELRC 1192 (KLR)

Serenge v Jok & another (Cause 493 of 2017) [2024] KEELRC 1192 (KLR)

Employment and Labour Relations Court
9 May 2024
1,059 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi (Linnet Ndolo, Judge) delivered virtually on May 9, 2024 on a Notice of Motion dated January 25, 2024 by the 1st Respondent, Peter Gatwek Luk Jok. He sought striking out of the Claimant's suit or, alternatively, transfer to the Magistrate's Court with leave to amend his Response. Grounds included limitation under Section 90 of the Employment Act (dismissal allegedly on October 23, 2013), lack of pecuniary jurisdiction because the Claimant's monthly salary is below Kshs. 80,000 in light of Gazette Notice No 6024 of June 10, 2018, lack of jurisdiction over tort claims, improper joinder of the Embassy of South Sudan, and diplomatic immunity. The Claimant opposed the Motion, deposing that she only learned of her termination verbally on August 17, 2016 after acquittal in a criminal case, and that her suit predated the Gazette Notice. The court held that the date of termination is a contested fact determinable only at full trial; that the Gazette Notice postdated the filing of the suit, and the ELRC had resolved to conclude matters already before it; that tort claims committed in the course of employment fall within its jurisdiction; and that the joinder issue was not raised by the Embassy and could be dealt with by amendment or a final order, diplomatic immunity having been addressed in a ruling of November 3, 2022. The Motion was dismissed with costs to the Claimant.

Key legal issues

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01

Limitation of actions under Section 90 of the Employment Act

Holding

Cannot be determined summarily because the date of termination is contested

Reasoning

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.

p. 3
02

Pecuniary jurisdiction under Gazette Notice No 6024 of June 10, 2018

Holding

No objection lies as the Gazette Notice postdated the filing of the suit and the ELRC resolved to conclude pending matters

Reasoning

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.

p. 3
03

Jurisdiction over tort claims within an employment dispute

Holding

ELRC has full jurisdiction where the alleged wrongs were committed in the course of the employment relationship

Reasoning

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.

p. 3
04

Joinder of the 2nd Respondent (Embassy)

Holding

No cause for removal; the Embassy has not raised the issue and there are procedural remedies

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The 1st Respondent's Notice of Motion dated January 25, 2024 is dismissed
  2. 2.Costs of the Motion to the Claimant

Authorities

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Legislation

  • Employment ActSection 90
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Penal CodeSection 281
  • Criminal Procedure CodeSection 210
  • Privileges and Immunities ActSection 4(1) and Article 31 of the First Schedule
  • Limitation of Actions ActSection 4(1)
  • Gazette Notice No 6024dated June 10, 2018
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya, 2010 (Employment and Labour Relations Court)

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, "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.