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ELRCOtherELRC NAIROBIRULING CAUSE NO. E333 OF 2023· [2024] KEELRC 2032 (KLR)
Malumbe v Track and Trace Limited (Cause E333 of 2023) [2024] KEELRC 2032 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#Kenya's Employment Court ruled that a jurisdictional objection based on contested facts must be decided with evidence, not dismissed early.
What this practically means
#Executive summary
#The Claimant sued for unfair termination of employment by Statement of Claim dated 24th April 2023. The Respondent filed a Memorandum of Response dated 18th July 2023, amended on 29th November 2023, together with a Notice of Preliminary Objection arguing that the Employment and Labour Relations Court lacked territorial jurisdiction because the employment contract was governed by Ugandan law and was performed exclusively in Uganda. The court, per Linnet Ndolo J, applied the classic Mukisa Biscuit test that a preliminary objection must be a pure point of law argued on assumed facts. It found the applicable-law question was not straightforward: the appointment letter of 24th August 2021 was on the letterhead of an entity with its head office in Nairobi, the Claimant's salary was expressed in Kenya Shillings, and the Respondent's own pleadings referred to its Ugandan subsidiary as the deployment site. The court held the applicable law was contested and could only be determined upon taking evidence, so the objection could not succeed in limine. The Preliminary Objection was overruled with costs in the cause. This is an interlocutory ruling; the substantive claim remains for full hearing.
Key legal issues
#01
Whether the preliminary objection on jurisdiction was a pure point of law
Holding
It was not; the applicable law was contested on the pleadings and required evidence
Reasoning
Applying Mukisa Biscuit, a preliminary objection must raise a pure point of law on assumed facts. Here the appointment letter bore the letterhead of a Nairobi entity, salary was in Kenya Shillings, and the Respondent's own pleadings referenced its Ugandan subsidiary. The applicable-law question therefore depended on facts ascertainable only through evidence, defeating the objection.
p. 1
Legal principles established
#- Where the applicable law governing an employment contract is contested and depends on facts, it cannot be resolved via a preliminary objection
Court orders
#- 1.The Respondent's Preliminary Objection is overruled with costs in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment Act (Court's inherent jurisdiction to determine its competence over the claim)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Malumbe v Track and Trace Limited (Cause E333 of 2023) [2024] KEELRC 2032 (KLR)", Case Analysis (2024). ELRC NAIROBIRULING CAUSE NO. E333 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2032/eng@2024-07-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.