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ELRCDismissedNot stated in judgment· [2025] KEELRC 266 (KLR)

Kyalo v DT Dobie & Company (Kenya) Limited & 2 others (Cause E507 of 2024) [2025] KEELRC 266 (KLR)

Employment and Labour Relations Court
31 January 2025
ANAgnes Kitiku Nzei
1,269 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court ruled it can hear claims against companies beyond just employers, and fact-based jurisdiction challenges must wait for trial.

What this practically means

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Executive summary

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The Claimant sued the 1st, 2nd and 3rd Respondents by a Memorandum of Claim dated 1st July 2024, seeking declarations that the Termination of Service Agreement dated 28th March 2023 was illegal and unenforceable, that constructive termination on 9th May 2024 and the subsequent redundancy termination were unlawful and in breach of Articles 41 and 47 of the Constitution, that the 3rd Respondent induced breach of contract, plus monetary awards of approximately Kshs.25.4 million, Kshs.13.3 million and Kshs.123.2 million against the respective Respondents, damages, interest and costs. The 1st and 2nd Respondents filed a Notice of Preliminary Objection on 9th July 2024 arguing that, under Section 12 of the Employment and Labour Relations Court Act, the Court lacked jurisdiction over the claim against the 3rd Respondent, a foreign company and shareholder of the 2nd Respondent with no employment relationship with the Claimant, and sought striking out of the claim against the 3rd Respondent. The court, applying Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, held that the objection was framed like a pleading and raised contested factual issues requiring evidence at trial, not a pure point of law. Relying on Paramount Bank Ltd v Vaqvi Syed Qamara and Hassan Magiya Kiage v Attorney General, the court further held that the ELRC's jurisdiction under Article 162(2)(a) is not confined to employers and employees but extends to all disputes relating to employment and labour relations. The Preliminary Objection was dismissed with costs to the Claimant.

Key legal issues

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01

Whether the Preliminary Objection was properly raised as a pure point of law

Holding

The objection was improperly raised because it rested on contested facts about the Claimant's employment relationship with the 3rd Respondent, which can only be determined at trial.

Reasoning

Applying Mukisa Biscuit, the court held that a preliminary objection must be a point of law pleaded or arising clearly from the pleadings, argued on the assumption that the other party's pleaded facts are correct. Here, rival and clashing facts were pleaded regarding the employment relationship, requiring witnesses, testimony and evidence. Determining whether an employment relationship existed with the 3rd Respondent is a matter of fact for trial.

p. 3
02

Whether the ELRC lacks jurisdiction over a claim against a foreign company alleged to be a shareholder of the employer

Holding

The Court's jurisdiction under Article 162(2)(a) and Section 12 of the ELRC Act extends to all disputes relating to employment and labour relations, and is not confined to employers and employees; whether the 3rd Respondent is implicated is a question for evidence.

Reasoning

Relying on Paramount Bank Ltd v Vaqvi Syed Qamara and Hassan Magiya Kiage v Attorney General, the court noted the ELRC's jurisdiction covers disputes 'relating to and arising out of employment and labour relations' and personal jurisdiction extends to all persons implicated in such a dispute, not just employers and employees. Whether the 3rd Respondent is such a person is a factual question for trial.

p. 3

Legal principles established

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  • A preliminary objection must consist of a pure point of law; where facts are in dispute, the matter must proceed to trial.
  • The jurisdiction of the Employment and Labour Relations Court is not confined to employers and employees but extends to all disputes relating to employment and labour relations.

Court orders

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  1. 1.The 1st and 2nd Respondents' Preliminary Objection dated July 9, 2024 is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12
  • Constitution of KenyaArticle 162(2)(a)
  • Constitution of KenyaArticles 41 and 47

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd
    [1969] E.A. 696
  • Paramount Bank Limited – vs – Vaqvi Syed Qamara & Another
    [2017] eKLR
  • Hassan Magiya Kiage – vs – Attorney General and Another
    [2017] eKLR
  • Stanley Mungai Muchai – vs – National Oil Corporation
    [2012] eKLR
Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya; Section 12 of the Employment and Labour Relations Court Act

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, "Kyalo v DT Dobie & Company (Kenya) Limited & 2 others (Cause E507 of 2024) [2025] KEELRC 266 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/266/eng@2025-01-31

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