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ELRCAllowedNot stated in judgment· [2025] KEELRC 1550 (KLR)

Mulingata v Kenya Reinsurance Corporation Limited & another (Cause E1063 of 2024) [2025] KEELRC 1550 (KLR)

Employment and Labour Relations Court
29 May 2025
LNLinnet Ndolo
944 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 that a forensic investigator hired by an employer cannot be sued in the employment court because it has no employment relationship with the employee.

What this practically means

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Executive summary

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The 2nd Respondent moved the Court by Notice of Motion dated 14th February 2025 seeking to strike out the Claimant's claim against it, on grounds that there was no employer-employee relationship between the Claimant and the 2nd Respondent, that the defamation claim did not arise from employment, and that the Court lacked jurisdiction under Section 12 of the Employment and Labour Relations Court Act. The Claimant opposed, admitting the absence of an employment relationship but contending that the 2nd Respondent was in a contract for service with the 1st Respondent to conduct forensic investigations against him, and that its report, containing false and defamatory statements, was the sole basis of his dismissal. The Claimant relied on authorities holding that the ELRC can entertain defamation claims connected to wrongful termination. The Court accepted that those authorities remain good law but distinguished them, since the party seeking to exit had no employment relationship with the Claimant, directly or indirectly. The Court held that the 1st Respondent, as employer, took full responsibility for the use of the forensic report, and that the employer's duty to afford a fair disciplinary process does not depend on a third party outside the employment relationship. The application was allowed, the Claimant's claim against the 2nd Respondent was struck out, with costs to the 2nd Respondent.

Key legal issues

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01

Whether the ELRC has jurisdiction over claims against a third party with no employment relationship with the claimant

Holding

The Court lacks jurisdiction over the 2nd Respondent since there was no employer-employee relationship, directly or indirectly, between it and the Claimant; the defamation claim was substantive and not incidental to employment.

Reasoning

The 2nd Respondent was hired by the 1st Respondent to conduct a forensic investigation and produce a report. The 1st Respondent, as employer, was at liberty to act on the report and assumed full responsibility for that action. The flow of events did not bring the 2nd Respondent within the specialised jurisdiction of the ELRC. The authorities relied on by the Claimant involved parties connected to the employment relationship, which is not the case here.

p. 3
02

Whether the defamation claim against the 2nd Respondent was connected to the employment relationship

Holding

Although the report allegedly triggered the termination, the claim against the 2nd Respondent did not arise from an employment relationship with it.

Reasoning

The Court distinguished the Court of Appeal authorities relied on by the Claimant, noting that those cases concerned claims flowing directly from dismissal by an employer. Here, the party seeking to exit the proceedings had no employment relationship with the Claimant. The employer remained fully responsible for its use of the forensic report in the disciplinary process.

p. 2

Legal principles established

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  • The jurisdiction of the ELRC is premised on the existence of an employment relationship
  • An employer's duty to avail an employee a fair disciplinary process is not dependent on the action of a third party not privy to the employment relationship
  • The employer takes full responsibility for the use of a report produced by a third party on its behalf

Court orders

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  1. 1.The application dated 14th February 2025 is allowed
  2. 2.The Claimant's claim as against the 2nd Respondent is struck out
  3. 3.Costs of the application to the 2nd Respondent
Jurisdiction invoked
Article 162(2)(a) of the Constitution and 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, "Mulingata v Kenya Reinsurance Corporation Limited & another (Cause E1063 of 2024) [2025] KEELRC 1550 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1550/eng@2025-05-29

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