https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1873

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT** **AT NAIROBI** *(Before Hon. Lady Justice Monica Mbarũ)* **APPEAL NO. E137 OF 2025** **UNIVERSITY OF NAIROBI APPELLANT** *VERSUS* **LINET MIREHANE OURA RESPONDENT** **[Being an appeal from the judgment of Hon. Aziza Ajwang delivered on 29 April 2025 in Nairobi MCELRC E420 of 2022]** **JUDGMENT** The Appeal arises from the judgment delivered on 29 April 2025 in Nairobi MCELRC E420 of 2022. The Appellant seeks that the judgment and decree be set aside and the claim against the Respondent be dismissed with costs. The Appeal is that the learned magistrate erred in law and fact and derelicted her duty to act judicially under Article 159 of the Constitution by holding that the Respondent was an employee of the Appellant who was constructively dismissed. The respondent was eligible for payment of salary arrears and general damages, whereas the basis for the holding and awards was an irregular, unlawful, and questionable employment contrary to sections 35, 36, and 40 of the Universities Act, 2012. The trial court failed to appreciate that the irregular, unlawful, and questionable actions of a college principal did not vary or negate the statutory functions and powers of the Appellant Council under sections 35, 36, and 40 of the Universities Act. Other grounds of appeal are that the trial court erred in law and fact by misapprehending the dispute in terms of the awards for: 1. one month’s salary in lieu of notice, 2. salary for days worked in November, 3. house allowance, 4. leave days, and 5. gross salary as compensation for unfair termination The trial court applied the wrong principles of law. It thereby arrived at a decision that is manifestly wrong and unsupported in law and by the evidence on record, and that the appeal should be allowed. The background of the Appeal is a claim filed by the Respondent. The claim was that the appellant employed the respondent on 25 September 2011 at the College of Biological & Physical Sciences, with the respondent earning Ksh. 324 per day, payable at the end of every 2 weeks. This amount was later increased to Ksh. 880.95 as at the time of termination. The respondent worked until 18 November 2020, when the appellant informed her that her services were no longer required. There was no notice or reason given. She claimed that this constituted wrongful termination of employment without a disciplinary hearing. Nor did her benefits include a refund for uniforms, a house allowance, off days, and a gratuity at the rate of 31% of basic pay for each year worked at the institution, since the CBA covered her for the period 2013-2017. She was only paid for the days worked. She claimed the following: 1. One month’s salary in lieu of notice, 17,619 + 2, 642. 85 = Ksh.20,261.85 2. Salary for the 18 months worked in November 2020 (880.9 x 18) Ksh.15, 856. 2 3. Underpayments for the period May 2017- December 2017 622-527 = 95 x 26 days x 8 months Ksh. 19,760/= 1. House allowance for the period October 2011 to November 2020 (15% of 17, 619) x 109 months Ksh. 285, 427.8 1. Service/Gratuity pay for 9 years @ 31% yearly basic pay 31% of (17,619 x 12) = 65, 542.68 x 9 years Ksh. 589,884.12 1. Leave pay for 9 years ($^{21}/\_{26}$ x 20, 261.85) x 9 Ksh.27, 000 2. Uniform for the duration worked 3. Gum boots 2 pairs per year @ 1,500 = 3,000 x 9 years Ksh. 27, 000 4. Gloves 2 pairs per month @ 150 = 300 x 12 5. Off days for the duration worked (4 days 109 months x 880.9 = Ksh.384,072.4 1. 12 months gross salary compensation due to unfair termination and loss of employment = 12 x 20, 261.85 = Ksh. 243,142.2 In reply, the Appellant denied the claims, contending that the subject matter of termination of service was a result of the Respondent’s outsourcing of cleaning services that had been the subject of court litigations in the **Kenya Tertiary & Schools Workers Union (KETASWU) v Council, University of Nairobi and KUDHEIHA vs University of Nairobi and the Vice Chancellor**. The employment of the claimant was irregular, null and void for want of the Respondent’s Council participation and involvement. The Respondent was not a member of KUDHEIHA to derive benefits from the 2013-2017 CBA. The respondent is not entitled to terminal dues, uniform refund, and gratuity as pleaded, for the reason that the matters are *res judicata*, having been successfully litigated in previous court cases, and prayed that the claim be dismissed with costs. The learned magistrate heard the parties and held that the Respondent was an employee of the Appellant University. There was no explanation of how she served and was paid for 9 years if the appellant did not recruit her. The court also found that the nature of employment relationship between the respondent and the claimant is not casual or temporary but permanent and pensionable as per section 37 (1) of the Employment Act (The Act). As such, the 2013-2017 CBA applies to the claimant under clause 2(b) of the Agreement. The Court also found that the Respondent failed to comply with section 40 of the Act on the procedure for the declaration of redundancy, rendering the Respondent's decision unprocedural. Accordingly, the trial court concluded that the respondent’s employment was wrongfully and unfairly terminated and hence allowed the claims including the following: 1. the claimant[respondent] was wrongfully and unfairly dismissed from employment 2. the deliberate and continued withholding of unpaid gratuity is irregular, wrongful and unlawful. 3. An award of KSh 17,619 being one month’s salary in lieu of notice. 4. An award of ksh. 11, 452. 35 being salary for the days worked in November 5. An award of Ksh. 145, 076.40 being house allowance 6. An award of Ksh 518, 748 being service/gratuity pay 7. An award of KSh 128,076.58 being leave days. 8. An award of ksh. 105,714, being six months' gross salary, as compensation for unfair termination. 9. Costs of the suit. On the Appeal, the parties agreed to address the matter through written submissions, which have been considered in this Appeal. **Determination** This is a first Appeal. The Court may review the records, reassess the findings, and reach a conclusion, but taking into account that the trial Court had the chance to take evidence and appreciate the demeanour of witnesses. The basis of the claim by the respondent before the trial court is that her employment was wrongfully and unfairly terminated by the appellant. She was unionised and enjoyed benefits under the CBA between KUDHEIHA and the University of Nairobi from 2013 to 2017. Hence, the learned magistrate proceeded to assess the claim by the respondent of the absence that she enjoyed terms and conditions secured under the CBA. This is demonstrated by the various awards of the trial court, including the benefit of service gratuity, which accrues only under the subject CBA. Indeed, part of the documents filed by the respondent in support of her claim were the following: 1. *Recommendation letter.* 2. *Duty roster.* 3. *Certificate of participation.* 4. *Extract from the respondent’s time book.* 5. *Copy of the Collective Bargaining Agreement in place (2013-2017).* 6. *…* In analysing the claim and response, the learned magistrate heavily relied on the subject CBA as applicable to the respondent and binding on the appellant. One of the issues for determination was *whether the 2013-2017 CBA applies to the claimant.* At paragraph (14) of the judgment, the subject CBA is addressed: *… the 2013-2017 CBA applies to the claimant vide clause 2(b) of the agreement:* *“The terms and conditions of employment set out in this agreement shall be observed by both parties and shall apply to employees of the University of Nairobi on permanent and pensionable terms.”* On appeal, one issue that stands out to this court is jurisdiction. No party addressed it before the trial court or this court. Save, the appellant has made submissions in the appeal that the learned magistrate correctly applied the CBA and held that the respondent was a permanent employee based on being unenrolled under KUDHEIHA, which the University of Nairobi recognised, and there was a CBA. There is a fundamental difference between an employment claim and a labour relations dispute as addressed in **Kudheiha Workers Union v Pinewood Beach Resort & Spa [2023] KEELRC 1204 (KLR).** On the one hand, an employment dispute is one premised on rights under the Employment Act (the Act), while a labour relations dispute is one premised on rights under the Labour Relations Act (LRA). Under the LRA, employees are allowed to unionise, seek employer recognition, and, upon it, negotiate a collective agreement (CBA). Hence, a dispute premised under the provisions of the LRA has a different character from that under the Act. Upon unionisation under the LRA, employees are allowed to attend under their trade union of choice. In securing access to justice, the Chief Justice published Gazette Notice No. 6024 on 10 June 2018, allowing all claims relating to an employee earning a wage below Ksh 80,000 to be filed in the Magistrates' Court. Such claims relate to rights under the Act, not the LRA, since such matters are reserved for the court. Kenya Gazette Notice No. 6024 dated 10 June 2018 and allowing the following; *Disputes arising from contracts of employment (excluding trade disputes under the Labour Relations Act, 2007) where employees' gross monthly pay does not exceed Kshs 80,000.00 as commenced and continued in accordance with the Employment and Labour Relations Court (Procedure) Rules, 2016.* The Legal Notice allowing the magistrates' court to hear employment disputes specifically excluded trade disputes and vested the court with exclusive jurisdiction. In this regard, a trade dispute is defined under the LRA to mean: ***“trade dispute” means a dispute or difference, or an apprehended dispute or difference, between employers and employees, between employers and trade unions, or between an employers’ organisation and employees or trade unions, concerning any employment matter, and includes disputes regarding the dismissal, suspension or redundancy of employees,*** ***allocation of work or the recognition of a trade union;*** In this regard, addressing a claim premised on labour relations and allocating awards based on a CBA was to proceed without the requisite jurisdiction as held in **Kenga Equatorial Hotels t/a Mombasa Continental Resort v Chege [2025] KEELRC 162 (KLR)**. Jurisdiction must flow from the constitution, a statute, or both. Without it, the court must stop. This is the rule of thumb, as emphasised in **Federation of** **Kenya Employers v National Health Insurance Fund Management Board & 4 others; Association of Kenya Insurers & another (Interested Parties) [2022] KEELRC** **4068 (KLR)** that; *“Jurisdiction must flow from the Constitution or the law. It cannot be extended* *by interpretation or craft as held in* ***Samuel Kamau Macharia v Kenya Commercial Bank & 2 others [2012] eKLR****.”* The claim, as constructed before the trial court, the nature of prayers sought, including reliance on a CBA applicable at the shop floor, denied the trial court the requisite jurisdiction to hear and determine the matter. The resulting judgment delivered on 29 April 2025 is invalid, null and void. The parties' analysis and submissions do not address this aspect. Delving into the substantive appeal will be purely academic. Such is not necessary based on the finding above. The claim before the trial court should have been struck out. Where time allows, the respondent is at liberty to move the appropriate court. As to costs, based on the analysis above, neither party addressed them; hence, each party shall bear its costs. **Accordingly, judgment is Nairobi CMELRC No. E420 of 2022 is set aside in its entirety. Each party to bear its costs.** **Delivered in open court this 29th day of June 2026** **M. MBARŨ** **JUDGE** **In the presence of:** Court Assistant: Samuel Maruga …………………………………………… and …………………………………..…