Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCOtherNot stated in the provided judgment· [2024] KEELRC 1375 (KLR)

Legal Advice Centre t/a Kituo Cha Sheria & 13 others v Cabinet Secretary, Ministry of Labour & Social Protection & 7 others; Commission on Administration on Justice & 2 others (Interested Parties) (Employment and Labour Relations Petition E038 of 2023) [2024] KEELRC 1375 (KLR)

Employment and Labour Relations Court
6 June 2024
MNMathews Nderi Nduma
3,366 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment and Labour Relations Court has confirmed it can hear a landmark petition over abuses of Kenyan migrant workers in the Middle East.

What this practically means

#

Executive summary

#
This is a ruling of the Employment and Labour Relations Court at Nairobi on a notice of preliminary objection by the Attorney General and other respondents to a petition alleging widespread violation of the human and labour rights of Kenyan migrant workers recruited to the Middle East through private employment agencies. The petitioners documented abuses including physical, psychological and sexual abuse, trafficking, confiscation of travel documents, withholding of salaries, contract substitution, slavery and servitude under the Kafala system, and deaths of workers in Saudi Arabia. They sought extensive declaratory and mandatory reliefs, including suspension of labour migration to the Middle East, vetting of recruitment agencies, repatriation of distressed workers and of the body of the late Lucy Wambui Ng’ang’a, ratification of ILO conventions, compensation, and law reform. The respondents objected that the ELRC lacked jurisdiction, contending the issues fell within the High Court's Article 165(3)(b) jurisdiction, and that the petition was frivolous, vexatious and an abuse of process, citing Samuel Kamau Macharia and Republic v Karisa Chengo. Relying on the Supreme Court's decision in the Kenya Tea Growers petition, which approved the USIU case and held that the ELRC may determine constitutional questions arising within disputes reserved to it under Article 162(2)(a), the court held that the multifarious statutory and constitutional issues all relate to employment and labour relations. The preliminary objection was dismissed and the petition ordered to proceed on its merits before the ELRC. No costs order is recorded.

Key legal issues

#
01

Jurisdiction of the ELRC over a petition alleging state violation of rights of migrant workers

Holding

The ELRC has jurisdiction; the objection that the matter belongs to the High Court under Article 165(3)(b) was rejected

Reasoning

Applying the Supreme Court's decision in Kenya Tea Growers Association (Petition E004 of 2023), which approved the USIU decision, the court held that multifarious statutory and constitutional issues relating to employment and labour relations, locally and internationally, may be determined by the ELRC. The pleadings were not placed in dispute within the meaning of the Mukisa Biscuit case, so the jurisdictional objection could not succeed.

p. 8
02

Whether the petition is frivolous, vexatious and an abuse of process

Holding

The objection was found misconceived and without merit

Reasoning

The court considered the pleadings and the nature of the grievances, which concern documented abuses of Kenyan migrant workers, and concluded the objections lacked merit. The petition was directed to proceed to a full hearing on its merits before the ELRC.

p. 8

Legal principles established

#
  • The ELRC, in exercising its jurisdiction over employment and labour disputes, may determine constitutional issues arising within such a dispute and is not confined to the High Court's Article 165 jurisdiction

Court orders

#
  1. 1.The preliminary objection raised by the respondents is dismissed
  2. 2.The petition to proceed on its merit before the ELRC as filed

Authorities

#

Legislation

  • Constitution of Kenya, 2010Articles 10, 21, 25, 26(1), 27(1), 28, 29(c),(d),(e),(f), 30, 35, 41, 162(2)(a), 165(3)(b), 165(5)(b), 23(e)
  • Employment and Labour Relations Court ActNo. 20 of 2011, section 12(1)
  • Employment Act, 2007Sections 83, 84, 85, 86
  • Labour Institutions (Private Employment Agencies) Regulations, 2016Regulation 18
  • Treaty Making and Ratification ActSection 7

Cases cited (7)

  • Samuel Kamau Macharia versus Kenya Commercial Bank and 2 others
    [2011] eKLR
  • Republic versus Karisa Chengo and 2 others
    [2017] eKLR
  • National Society Security Fund Board of Trustee versus Kenya Tea Growers Association and 14 others
    Civil Appeal 656 of 2022 [2022] KECA 80 (KLR)
  • Kenya Tea Growers Association and 2 others and The National Social Security Fund Board of Trustees and 13 others
    Petition E004 of 2023 consolidated with Petition No. E002 of 2023
  • United States International University (USIU) versus Attorney General
    High Court Petition No. 17 of 2012 [2012] eKLR
  • Professor Mugendi versus Kenyatta University and others
  • Mukisa Biscuit case (supra)
Jurisdiction invoked
Article 162(2)(a) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act, No. 20 of 2011

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Legal Advice Centre t/a Kituo Cha Sheria & 13 others v Cabinet Secretary, Ministry of Labour & Social Protection & 7 others; Commission on Administration on Justice & 2 others (Interested Parties) (Employment and Labour Relations Petition E038 of 2023) [2024] KEELRC 1375 (KLR)", Case Analysis (2024). Not stated in the provided judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1375/eng@2024-06-06

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