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Court of AppealDismissedCivil Appeal No. 207 of 2013

Kenya Medical Research Institute v Davy Kiprotich Koech [2018] KECA 128 (KLR)

Court of Appeal
9 November 2018
PWP. N. WakiMohamed Abdulahi WarsameM. WarsameAMA. K. Murgor
3,272 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal ruled that employment disputes, even with defamation claims, belong in the Employment and Labour Relations Court, which should receive transferred cases rather than see them struck out.

What this practically means

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Executive summary

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This appeal arose from a ruling of the High Court (P. Kihara Kariuki, J.) delivered on 15 July 2011 in HCCC No. 382 of 2010, dismissing KEMRI's application to strike out Dr Davy Kiprotich Koech's suit for want of jurisdiction. The respondent, whose employment as director was terminated on 16 August 2007, had sued in the High Court's Commercial Division claiming damages for wrongful dismissal and general damages for defamation arising from the manner of his termination. KEMRI contended that the dispute was employment-related and lay exclusively in the Industrial Court under section 12 of the Labour Institutions Act 2007 and the Employment Act 2007. The Court of Appeal framed the central issue as whether the High Court or the Industrial Court had jurisdiction over a suit predominantly employment-related but containing a defamation claim. Relying on the Supreme Court's decision in Samuel Kamau Macharia v KCB on the nature of jurisdiction, the Court held that since the suit was filed on 4 June 2010, before the 2010 Constitution, the Industrial Court under the Labour Institutions Act had exclusive jurisdiction, and that sections 47 and 87 of the Employment Act and section 12(4) of the Labour Institutions Act empowered it to determine the defamation claim and award damages, the alleged defamation being materially connected to the respondent's employability. The High Court therefore lacked jurisdiction. However, applying Mugendi v Kenyatta University and Article 159(2), the Court declined to strike out the suit, instead ordering transfer to the Employment and Labour Relations Court. The appeal was dismissed, with each party bearing its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the High Court or the Industrial Court had jurisdiction to entertain a suit which was predominantly employment related but which also contained a claim for defamation
  2. 2.Whether the Industrial Court had jurisdiction over a defamation claim raised in connection with wrongful termination of employment
  3. 3.Whether the appropriate remedy was striking out the suit for want of jurisdiction or transfer to the Employment and Labour Relations Court

Key legal issues

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01

Jurisdiction over a suit predominantly employment-related but including a defamation claim

Holding

The Industrial Court had exclusive jurisdiction; the defamation claim, being tied to the wrongful termination and its effect on employability, fell within its remit under sections 47 and 87(1) of the Employment Act 2007 and section 12 of the Labour Institutions Act 2007.

Reasoning

The suit was filed on 4 June 2010, before the 2010 Constitution, when the Industrial Court established under the Labour Institutions Act 2007 had exclusive jurisdiction over employment disputes. Sections 47 and 87 of the Employment Act extended the court's remit to disputes touching injury to the person of either party, which captured the defamation claim. Section 12(4) of the Labour Institutions Act empowered the court to award damages. Because the alleged defamation materially affected employability, it was inseverable from the employment dispute, leaving the High Court without jurisdiction.

p. 4
02

Remedy where a suit is filed in a court without jurisdiction

Holding

Rather than striking out, the suit should be transferred to the Employment and Labour Relations Court, following the harmonization approach in Mugendi v Kenyatta University, consistent with Article 159(2) and the overriding objective.

Reasoning

The court acknowledged the Kagenyi v Musiramo principle that a court cannot transfer what it has no jurisdiction to try, but held that recent jurisprudence under Article 159(2) favours transfer among courts of equal status to meet the ends of justice without undue regard to procedural technicalities. No prejudice would befall the appellant from transfer, and the suit would be heard on the merits rather than terminated on a jurisdictional technicality.

p. 5

Legal principles established

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  • The Industrial Court (and later the Employment and Labour Relations Court) has exclusive jurisdiction over employment-related disputes, including defamation claims that are connected to and arise from wrongful termination of employment.
  • Courts of equal status - the High Court, the ELRC and the Environment and Land Court - should transfer to each other matters filed in the wrong forum rather than strike them out, though parties should not file 'mixed grill' causes in any court they fancy.
  • Jurisdiction flows only from the Constitution or legislation and cannot be arrogated by a court; lack of jurisdiction is not a mere procedural technicality.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.The suit is not struck out for want of jurisdiction
  3. 3.The High Court shall transfer the suit to the Employment and Labour Relations Court for hearing and determination
  4. 4.Each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority
Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
AM
majority
On appeal from
High Court of Kenya at Nairobi (Milimani Commercial Courts)
HCCC No. 382 of 2010
Jurisdiction invoked
First appellate jurisdiction over appeals from the High Court (Court of Appeal established under the Constitution); appeal against a ruling on jurisdiction

Relief refused

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Striking out the respondent's suit for want of jurisdiction

The court found that transfer, rather than striking out, was the just approach consistent with Article 159(2) and the overriding objective

p. 5

Costs

Each party to bear its own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, the appeal is dismissed and we do not strike out the suit for want of jurisdiction. Instead, we order that the High Court shall transfer the suit to the Employment and Labour Relations Court for hearing and determination.
p. 5Final orders - appeal dismissed, suit transferred
Since the suit is yet to be determined on its merits, we order each party to bear its own costs.
p. 5Costs
we have come to the inevitable conclusion that the High Court did not have jurisdiction to entertain the dispute, which jurisdiction lay exclusively with the Industrial Court.
p. 4Exclusive jurisdiction over employment disputes including ancillary defamation claims
It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law.
p. 2Limits of judicial jurisdiction
These three Courts with similar/equal status should in the spirit of harmonization, effect the necessary transfers among themselves until such time as the citizenry is well-acquainted with the appropriate form for each kind of claim.
p. 4Transfer between courts of equal status

Issues in the judgment

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minor

The judgment states that the Industrial Court Act 2011 'repealed the Labour Institutions Act and the Employment Act, 2007', yet it also repeatedly refers to those Acts as the operative law at the time of filing and applies their provisions; the Acts were in fact repealed by later legislation, creating internal tension in the chronology as stated.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenya Medical Research Institute v Davy Kiprotich Koech [2018] KECA 128 (KLR)", Case Analysis (2018). Civil Appeal No. 207 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/128/eng@2018-11-09

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