[2020] KEELRC 1482 (KLR)
The court found that the cause of action arose from an employer-employee relationship, which falls squarely within the jurisdiction of the Employment and Labour Relations Court as provided under Article 162(2)(a) of the Constitution of Kenya 2010 and Section 12(1) of the Employment and Labour Relations Court Act,...
Source-derived case information.
- Citation
- [2020] KEELRC 1482 (KLR)
- Parties
- Petitioner: Peter Kataka; Respondent: The Hon. Attorney General
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Petition 40 of 2018
- Procedural Posture
- Constitutional Petition / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed
- Judges
- MN Nduma
- Legal Topics
- Unlawful Salary Deductions, Jurisdiction of Elrc, Right to Fair Labour Practices, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kataka
Petitioner
The Hon. Attorney General
Respondent
Procedural Posture
Constitutional Petition / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to hear the petition arising from an employer-employee relationship.
- 2 Whether the petition discloses a reasonable cause of action against the respondents.
- 3 Whether the preliminary objection should be upheld or dismissed.
Ratio Decidendi
The court found that the cause of action arose from an employer-employee relationship, which falls squarely within the jurisdiction of the Employment and Labour Relations Court as provided under Article 162(2)(a) of the Constitution of Kenya 2010 and Section 12(1) of the Employment and Labour Relations Court Act, 2011. The petition raises triable issues of law and fact that require a substantive response from the respondent. The preliminary objection did not meet the threshold for dismissal of the suit at this stage, as it did not demonstrate lack of jurisdiction or absence of a reasonable cause of action. Accordingly, the preliminary objection was dismissed with costs in the cause.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection is dismissed with costs in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT KISUMU
PETITION NO. 40 OF 2018
(Before Hon. Justice Mathews N. Nduma)
PETER KATAKA....................................................PETITIONER
VERSUS
THE HON. ATTORNEY GENERAL..........1ST RESPONDENT
RULING
1. The suit was commenced by a petition dated 23rd March 2018 on 1st May 2018. The petitioner has sued his employer with regard to continuous deduction of Kshs. 5,000 per month from his salary to date. The petitioner also claims general damages for violation of his constitutional right under Article 41 of the constitution of Kenya 2010.
2. The respondent has not filed a substantive response to the petition but instead filed a preliminary objection to the petition couched in the following terms:
(i) The Honourable court lacks jurisdiction.
(ii) That this claim raises no reasonable cause of action against the 1st and 2nd respondent.
(iii) The suit be dismissed with costs.
3. The court has carefully considered the preliminary objection raised by the respondent and the submissions filed by the 1st and 2nd respondents and by the petitioner on the preliminary objection. The court is satisfied that there are triable issues of law and fact raised by the petitioner in the petition which require substantive response by the respondent.
4. That the cause of action arose from an employer employee relationship and the court has jurisdiction to entertain the matter in terms of Article 162 (2) (a) of the constitution of Kenya 2010, read with Section 12(1) of the Employment and Labour Relations Court Act, 2011 as amended.
5. The preliminary objection lacks merit and is dismissed with costs in the cause.
Ruling Dated, Signed and delivered this 5th day of March, 2020
Mathews N. Nduma
Judge
Appearances
Lore Orege – Senior Litigation Counsel, A.G’s Chamber for the Objector
M/S Momanyi for Petitioner
Chrispo – Court Clerk