Bitok v Steel Structures Limited (Cause E515 of 2024) [2025] KEELRC 40 (KLR)
The bottom line
#The Employment Court ruled that a preliminary objection cannot be used to argue there was no employment relationship, because that question requires evidence at a full hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Claimant's claim is grounded on tort and therefore outside the Court's jurisdiction under Article 162(2)(b) of the Constitution
- 2.Whether the absence of an employer-employee relationship between the Claimant and Respondent ousts the Court's jurisdiction
- 3.Whether the claim is misconceived, incompetent and an abuse of the Court process and should be struck out
Key legal issues
#Whether the preliminary objection on jurisdiction (absence of employer-employee relationship) was sustainable
The preliminary objection was not merited and was dismissed; the claim proceeds to hearing
The Respondent argued that no employer-employee relationship existed, ousting the Court's jurisdiction under Article 162(2) and Section 12(1)(a) of the ELRC Act. The court held that establishing whether such a relationship exists requires production of evidence and reliance on factual issues, which cannot be determined on a preliminary objection as understood in the Mukisa Biscuit formulation. The objection therefore failed and the substantive claim was directed to full hearing.
Legal principles established
#- A preliminary objection cannot rest on facts requiring evidence; an issue requiring proof of an employer-employee relationship is beyond the purview of a preliminary objection
Court orders
#- 1.The preliminary objection dated 17th October 2024 is dismissed
- 2.The claim to proceed for hearing to conclusion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (jurisdiction challenged under Article 162(2)(a) and (b) and Section 12(1)(a) of the Act)
Relief refused
#Striking out of the Statement of Claim
The preliminary objection was not merited because it required proof of factual matters
Costs
No costs order made in the extract
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is my finding that the preliminary objection raised is not in the circumstances merited. I accordingly dismiss the preliminary objection and direct the claim to proceed for hearing to conclusion.
Proving an existence of such a relationship would require production of evidence and reliance on factual issues which in my view go beyond the purview of Mukisa Biscuit case.
Issues in the judgment
#The preliminary objection ground describes the claim as 'grounded on the tort of contract', an apparently contradictory formulation
The ruling refers to 'the preliminary objection raised by the applicant' although the objection was filed by the Respondent
Case title, case number and party names are not stated in the extract provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Bitok v Steel Structures Limited (Cause E515 of 2024) [2025] KEELRC 40 (KLR)", Case Analysis (2025). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/40/eng@2025-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.