Kiplagat & 2 others v Eldoret Water and Sanitation Company Limited (ELDOWAS) & 2 others; Uasin Gishu County (Interested Party) (Petition E007 of 2023) [2024] KEELRC 1332 (KLR)
The bottom line
#Kenya's Employment Court confirmed that company directors are not employees, so boardroom removal disputes belong in other courts, not the ELRC.
What this practically means
#Executive summary
#Key legal issues
#Whether the Petitioners are employees of the 1st Respondent and whether the ELRC has jurisdiction
The Petitioners are not employees; they were appointed as directors under the Memorandum and Articles of Association under the Companies Act, so the ELRC lacks jurisdiction
Relying on section 2 of the Employment Act and section 12 of the ELRC Act, and the binding Court of Appeal decision in Rift Valley Water Services Board v Geoffrey Asanyo, the court held that directors receiving allowances are office-holders, not employees. Their appointments arose from the company's Memorandum and Articles of Association, not a contract of service, so no employer-employee relationship exists to confer jurisdiction on the ELRC.
Whether the preliminary objections qualify as proper preliminary objections on a pure point of law
The court did not expressly rule on this; it proceeded to uphold the objections on jurisdiction
The Petitioners argued, citing Mukisa Biscuits and Orao v Mbaja, that the objections raised factual questions requiring evidence. The court did not engage with this argument, instead addressing the single issue of jurisdiction, which it treated as a pure question of law, and upheld the objections.
Legal principles established
#- Directors of a company are office-holders and not, without more, employees of the company; the Employment and Labour Relations Court has no jurisdiction over disputes relating to their board appointment or removal absent a contract of service
Court orders
#- 1.The Preliminary Objections dated 23rd August 2023 and 7th September 2023 are upheld
- 2.The Petition dated 31st July 2023 is struck out for want of jurisdiction
- 3.There shall be no orders for costs
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 12 of the Employment and Labour Relations Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiplagat & 2 others v Eldoret Water and Sanitation Company Limited (ELDOWAS) & 2 others; Uasin Gishu County (Interested Party) (Petition E007 of 2023) [2024] KEELRC 1332 (KLR)", Case Analysis (2024). Petition dated 31st July 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1332/eng@2024-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.