https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1590

Kirui v Cheruiyot & 7 others (Petition E014 of 2025) [2026] KEELRC 1590 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1590 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Kericho Petition E014 of 2025 AN Mwaure, J May 22, 2026 Between Ramson Kiptonui Kirui Petitioner and Sirkelly Cheruiyot 1st Respondent Vicky Betty Chepkorir 2nd Respondent Arnold Kiplangat 3rd Respondent Edgar Mutai 4th Respondent Ruth Chelule 5th Respondent Oscar Cheruiyot 6th Respondent Kiplangat Kurgat David 7th Respondent The County Government Of Kericho 8th Respondent Ruling 1.The 1st to 7th Respondents filed a Notice of Preliminary Objection dated 25th November 2025 on the following grounds that: 1.This Honourable Court lacks jurisdiction to entertain the instant application and Petition as the Petitioner is neither an employee of the 7th Respondent nor of any of the Respondents within the meaning of section 2 of the Employment Act, 2007. 2.Under Article 162(2)(a) of the Constitution as read with section 12 of the Employment and Labour Relations Court Act, No. 20 of 2011 the jurisdiction of this court is confined strictly to disputes arising from or relating to employment and labour relations, which is not the case herein. 3.The Petitioner’s relationship with the 7th Respondent is that of stakeholder/customer and not one of the employment, and therefore the Petition falls outside the scope of the Employment and Labour Court’s jurisdiction. 4.In Rift Valley Water Services Board & others V Asanyo & 2 others [2022] KECA 778(KLR), the Court of Appeal authoritatively held that in the absence of a contract of service, directors, officer-holders, or stakeholders cannot invoke the jurisdiction of the ELRC. 5.Pursuant to the principle in Owners of the Motor Vessel “Lilian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, where a court finds that it has no jurisdiction, it must down its tools forthwith. 2.The 1st to 7th Respondent urged the court to dismiss or strike out the Petition and Notice of Motion for want of jurisdiction with costs. 3.Parties canvassed the preliminary objection by way of written submissions. 1st to 7th Respondents’ written submissions 4.The 1st to 7th Respondents submitted that this court(ELRC) has exclusive jurisdiction to hear disputes arising from employer–employee relationships as outlined in section 12 of ELRC Act which provides disputes covered, including those between employers, employees, trade unions, and employer organizations. However, the 1st to 7th Respondents emphasizes that under section 2 of the Employment Act, an employee is defined as someone employed for wages or salary, including apprentices and indentured learners. On this basis, the 1st to 7th Respondents contended that board members do not qualify as employees since they only participate in organizational deliberations when required, and therefore disputes involving them fall outside the Court’s jurisdiction. 5.The 1st to 7th Respondents relied on the case of Rift Valley Water Services Board & 3 Others v Asanyo & 2 Others(Supra) where the Court of Appeal held that the 1st Respondent was not an employee of the 2nd Respondent within the meaning of the Employment Act, which defines an employee as someone engaged for wages or salary, including apprentices and indentured learners. Since the 1st Respondent was appointed to the board under the company’s Memorandum and Articles of Association for fixed terms, without a contract of service or remuneration as wages or salary, his role was that of a director representing the business community rather than an employee. Consequently, the Employment Act did not apply to him, and his relationship with the 2nd Respondent was one of governance, not employment. The text clarifies that a board director is distinct from an employee of a company. While employees are engaged under a contract of service for wages or salary, directors are considered office-holders whose appointment is governed by the Companies Act and the company’s Articles of Association. In the case of McMillan v Guest [1942] AC p.562, it was held that a company director is an officer-holder who is not, without more, an employee of the company. That is the position here. In the absence of a contract of service in terms of which a director is engaged as a full-time employee of a company, it cannot be presumed that such a director is an employee of the company (see Parsons v Albert J. Parsons and Sons Ltd [1979] ICR p.271). 6.The 1st to 7th Respondents submitted that in this instant case the Petitioner contested their appointments to the Board of the Kericho Water and Sanitation Company Limited. The 1st to 7th Respondents submitted that they are not employees of the Company but are merely Board members and therefore this Honourable Court lacks jurisdiction to determine this dispute. The 1st to 7th Respondents relied on the case of Simiyu V Cabinet Secretary, Ministry of Energy & another; Rural Electrification & Renewable Energy Corporation & another (Interested Parties) [2023] KEELRC 718 (KLR) where the court held as follows:“Flowing from the above it is evident this court has no jurisdiction ab initio to hear this case and so this court should down its tools at this point. It is unfortunate a lot of time is wasted in the process but that is how it is.The court is therefore bound by the pronouncements of the Court of Appeal in the Rift Valley Water Service Board & 3 others v Geoffrey Asanyo & 2 others supra as well as the provisions of section 2 of Employment Act specifically the definitions of employer and employee. The board members of an organisation are not employees and so this court has no jurisdiction to handle this matter.” 7.Similarly, in Music Copyright Society of Kenya(MSCK) v Muli & 2 others [2025] KEELRC 1621 (KLR) where the court held that the petition concerned the validity of respondents serving as directors of a company limited by guarantee, which is a matter governed by the Companies Act rather than the Employment Act. Since directorship disputes do not amount to employment relationships, jurisdiction lies with the High Court, not the Employment and Labour Relations Court. As set out in the case of Rift Valley Water Services Board & 3 others v Asanyo & 2 others and Gikenye & 2 others v Mwaura & 9 others which cited the case of Gikenye & 2 others v Mwaura & 9 others [2025] KEELRC 592, the court emphasized that the issue of directorship falls outside its mandate and therefore the petition was liable to dismissal. 8.In Munialo v President of Kenya & 4 others; Nzoia Sugar Company Limited (Interested Party) KEELRC 1969 (KLR) the court held that:“I find the decision in Omtatah case(supra) did not factor in the definition of employer where there is a requirement of contract of service. Under the doctrine of stare decisis the court of Appeal decision is superior. I find the Court of Appeal in Nakuru Civil Appeal No. 60 of 2015 Consolidated with Civil Appeal No. 61 of 2015 Rift Valley Water Services Board and others v Geoffrey Asanyo and others(delivered on the June 10, 2022 UR) outlined the reasons why the court had no jurisdiction over directors of the board for lack of contract of service to serve as employee of the company and further relied on the decision in Mc Millan v Guest (1942) AC p. 561 where it was held that the company director is an office holder who is not, without more, an employee of the company. The Court of Appeal proceeded to allow the appeal setting aside the decision of the court for lack of jurisdiction by dint of lack of employee employer relationship. I uphold to apply in the instant case the Court of Appeal decision for the foregoing reasons.In the instant case the appointment challenged position of chairman and the directors of the interested party which is both a company and a state corporation. The court applying the Court of Appeal decision in Nakuru Civil Appeal No. 60 of 2015 consolidated Civil Appeal No. 61 of 2015 Rift Valley Water Services Board and others v Geoffrey Asanyo and others (delivered on the June 10, 2022 UR) holds that the chairman and the directors of the board are not employees of the interested party in whose Board they have been appointed to serve by the 1st and 2nd Respondents hence the court lacks jurisdiction to handle or determine the petition for lack of employer employee relationship. Consequently the court also lacks jurisdiction to grant the temporary conservatory orders sought in the application.” 9.In the case of Kiplagat & 2 others v Eldoret Water and Sanitation Company Limited(ELDOWAS) & 2 others; Uasin Gishu County (Interested Party) [2024] KEELRC 1332(KLR) where the court observed as follows:“From the above definition as well as section 12 of the Employment and Labour Relations Court, it is clear that the Petitioners were not employees of the 1st Respondent. Their appointment was as directors of the 1st Respondent under the Memorandum and Articles of the 1st Respondent under the Companies Act. From the above precedent which is binding on this court, it is clear that this court has no jurisdiction to hear and determine the petition dated 31st July 2023 as the there exists no employer employee relationship between the parties in this dispute.” 10.In Tiko V County Secretary, Siaya County Government & 4 others [2022] KEELRC 1494 the court held that:“This court endorses the view taken in the last two decisions, find the Petitioner was not an employee, therefore, and declines jurisdiction in the instant petition. The court notes that it has come to its attention this morning that the court of Appeal overturned the decision relied on by the Petitioner and mentioned in paragraph 22 herein above last Friday 10 June 2022, and held that a director of a water company is not an employee of the water company- See Nakuru Civil Appeal No. 60 of 2015 consolidated with Nakuru Civil Appeal No. 61 of 2015, Rift Valley Water Services Board & Ors v Geoffrey Asanyo & Ors).” 11.The 1st to 7th Respondents submitted that board members of an organization are not employees within the meaning of Sections 2 and 12 of the Employment Act, 2007. Since the dispute at hand concerns board membership of Kericho Water and Sanitation Company Limited, it does not qualify as an employer–employee matter. Consequently, this court (ELRC) lacks jurisdiction to hear this case, and the petition should therefore be dismissed with costs awarded. Petitioner’s written submissions 12.The Petitioner submitted that the preliminary objection was raised after they had already benefited from a favourable ruling, despite the court having earlier assumed jurisdiction. In Rift Valley Water Services & 3 Others v Asanyo & 2 Others(Supra) clarified that disputes concerning directors of a water company are matters of business and company law, governed by the Memorandum and Articles of Association, rather than employment law. 13.The Petitioner placed reliance on Lady Justice Wasilwa’s decision in Okiya Omtatah Okoiti v President of Kenya & 4 others [2019] eKLR, which affirmed ELRC’s jurisdiction over appointments under section 12 of the Employment and Labour Relations Act, the principle of stare decisis requires deference to the Court of Appeal’s ruling that such matters fall under company law. The Petitioner, however, argued that the case raises broader constitutional issues of integrity, corporate governance under Article 10(2), and the right to clean and safe water under Article 43(1). 14.The Petitioner contended that jurisdiction lies with the High Court under the Companies Act and relied on the case of Wycliffe Amukowa & 2 others v Machakos University [2022] eKLR wherein the court observed thus:“It is my view that in the circumstances of this case, it would not advance the course of justice to terminate these proceeding. Since I am satisfied that the dispute can be properly dealt with by ELRC, the order which commends itself to me and which I hereby make is that further proceedings in this petition will be undertaken by the ELRC since the said court is a court of equal status as the High Court and is empowered to grant the reliefs sought herein.” 15.The Petitioner urged the court transfer the petition rather than dismissing it. Analysis and determination 16.The court has considered the preliminary objection together with the rival submissions by both parties. The issue raised vide the Preliminary Objection dated 25th November 2025 is whether this is a case of employer/employee and does this court have jurisdiction to handle the suit. 17.In Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696 a preliminary objection is defined as follows:“A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which, if argued as a preliminary point, may dispose of the suit… It raises a pure point of law, which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”. 18.In the Supreme Court’s case in Independent Electoral & Boundaries Commission v Cheperenger & 2 others [2015] KESC 2 (KLR), the court held as follows:“A true preliminary objection serves two purposes of merit: firstly, it serves as a shield for the originator of the objection, against profligate deployment of time and other resources. And secondly, it serves the public cause of sparing scarce judicial time, so it may be committed only to deserving cases of dispute settlement. It is distinctly improper for a party to resort to the preliminary objection as a sword for winning a case otherwise destined to be resolved judicially, and on the merits.” 19.This Honourable Court (ELRC), established under Article 162(2)(b) of the Constitution and section 12 of the Employment and Labour Relations Court Act, is vested with jurisdiction to determine disputes arising from contracts of service and employment relationships. 20.In this instant case, the Petitioner has lodged a Petition and Notice of Motion challenging the recruitment of the 1st to 7th Respondents to serve on the Board of the 8th Respondent. However, guided by the Court of Appeal decision in Rift Valley Water Services Board & Others v Asanyo & 2 others(Supra), it is settled that in the absence of a contract of service, directors, office-holders, or stakeholders cannot invoke the jurisdiction of this Court. 21.The court is therefore persuaded that the Petition, having been filed by the Petitioner in his capacity as a customer contesting the constitution of the 8th Respondent’s Water and Sanitation Board of Management, properly falls within the jurisdiction of the High Court and not this court and thus lack jurisdiction to handle the petition. The court relies on the case of Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd [1989] KECA 48 (KLR) the court held that:“A question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter was then obliged to decide the issue right away on the material before it. Jurisdiction was everything. Without it, a court had no power to make one more step. Where a court had no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downed tools in respect of the matter before it the moment it held the opinion that it was without jurisdiction.” 22.Since the court has even no jurisdiction to handle this case since it is not an employer/employee dispute the court therefore also has no jurisdiction to transfer the case to the High Court as per the plea by the Applicant in their submissions.In view of the foregoing, the court has no other alternative but to strike out the petition for lack of jurisdiction. 23.Each party to bear its own costs.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAKURU THIS 22ND DAY OF MAY, 2026.ANNA NGIBUINI MWAUREJUDGEORDERIn view of the declaration of measures restricting Court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open Court. In permitting this course, this Court has been guided by Article 159(2)(d) of the Constitution which requires the Court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this Court the duty of the Court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.A signed copy will be availed to each party upon payment of Court fees.ANNA NGIBUINI MWAUREJUDGE