James Jalango v Pfungwa Serma

a) That the court be pleased to find that it lacks jurisdiction to hear the matter as the claim does not constitute an employment and labour relations dispute within the meaning and contemplation of section 12 of the Employment and Labour Relations Court Act. b) That the court be pleased to issue any other relief that it deems appropriate. c) That the court gives directions on costs of the application. 3. The application is anchored on the grounds which are set out on the face thereof and the affidavit of the Respondent. The Respondent avers that the Claimant accused him of publishing defamatory material against him on 26 th October 2022 by allegedly circulating a memo which was addressed to the four banks. The Respondent avers that the tort of defamation which the Claimant accuses him of can only be tried by the High Court. 4. The Respondent asserts that the dispute as framed does not constitute an employment dispute within the meaning of section 12 of the Employment and Labour Relations Court Act. He further contends that there is no employer-employee relationship between the parties. As such, he avers that the suit is incompetent and ought to be struck out. 5. The Claimant has opposed the application. He asserts that the defamatory words complained about were published by the Respondent in the course of an employment relationship. ELRC CAUSE NO. E1016 OF 2025 2

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6. The Claimant relies on section 2 of the Employment Act to argue that the Respondent, being a manager of his employer at the time the defamatory words were allegedly circulated, stood in the position of his (the Claimant’s) employer. As such, he contends that there was an employer-employee relationship between the parties. 7. The Claimant further argues that the law grants this court jurisdiction to adjudicate on ancillary claims, including those relating to defamation of character, as long as they arise in the course of and from an employment relationship. Consequently, he contends that since the instant dispute between the parties arose in the course of employment, the court has jurisdiction over the matter. Analysis 8. The court takes note of the fact that although the Respondent has filed the instant application to dispute the court’s jurisdiction to entertain the dispute on the ground that there is no employment relationship between the parties, he is yet to file a defense to the cause to contest this fact. In the court’s view, it would have been better if the Respondent had filed his defense to the action first to raise the matter before he could file the instant application in order to give anchorage to it (the application). This is because the issue which he raises in the application regarding whether or not there was an employment relationship between the parties is anchored both on law and ELRC CAUSE NO. E1016 OF 2025 3

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fact. As such, it is not a pure point of law which may be raised without being alluded to in the pleadings. 9. That said, it is noteworthy that the basis for the Respondent’s contention that the court has no jurisdiction over the dispute is the assertion that there was no employment relationship between the parties. In response to the assertion, the Claimant has invoked section 2 of the Employment Act to contend that there was an employment relationship between the parties. According to the Claimant, at the time the Respondent published the impugned statement, he stood in the position of a manager of the employer and was thus deemed as an employer within the meaning of the aforesaid provision of statute. 10. As noted earlier, the question whether the disputants had an employment relationship is both a matter of law and fact. As such, it can only be determined after examining the evidence which the parties will tender at the trial against the applicable law. 11. It is noted that there is a document which has been placed on the court file which purports to be the Claimant’s contract of service. However, it is not lost to the court that the document is yet to be formally tendered in evidence. 12. As such and in view of the diametrically dissimilar positions expressed by the disputants on the matter, the court is unable to rely on the alleged contract at this preliminary stage of the case to make a conclusive determination ELRC CAUSE NO. E1016 OF 2025 4

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regarding whether or not there was indeed an employment relationship between the parties. It (the court) will only be able to pronounce itself on the issue after full trial. Determination 13. The upshot is that the court declines to determine whether there was an employment relationship between the parties at this preliminary stage of the case before it examines the evidence which the parties will tender on the matter. 14. As such, it (the court) directs that the question of jurisdiction which is anchored on whether the parties had an employment relationship shall be determined after full trial. 15. Costs of the application will abide the results of the trial. Dated, signed and delivered on the 24th day of September, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Claimant …………….for the Respondent ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the ELRC CAUSE NO. E1016 OF 2025 5

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parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. B. O. M MANANI ELRC CAUSE NO. E1016 OF 2025 6

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