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ELRCOtherPetition (Employment and Labour Relations Court, Nairobi) - number not stated in judgment· [2016] KEELRC 114 (KLR)

Nancy Macnally v International Centre of Insect Physiology and Ecology (ICIPE) [2016] KEELRC 114 (KLR)

Employment and Labour Relations Court of Kenya
20 December 2016
1,657 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Petitioner, Nancy McNally, formerly employed by ICIPE from 17th March 2014 until termination on 1st November 2014, petitioned the Employment and Labour Relations Court alleging violation of her constitutional and legal rights. She sought declarations that the Privileges and Immunities (ICIPE) Order, 1989 and Section 45 of the Employment Act are inconsistent with the Constitution, alongside other reliefs. The Respondent raised a preliminary objection asserting immunity from suit and legal process under the Privileges and Immunities Act (Cap 179), the 1989 Order, Article 27 of the ICIPE Charter and Article 2(5) of the Constitution, and sought dismissal of the petition with costs. The Petitioner countered that the Privileges and Immunities Act is subordinate to the Constitution, that her Article 41 rights cannot be abrogated by statute, and that ICIPE enjoys restrictive rather than absolute immunity. Adopting the Mukisa Biscuit definition of a preliminary objection, the court accepted that ICIPE enjoys immunity under duly recognised legal instruments but held that the petition, which traverses constitutional declarations and specific prayers, is not an ordinary employment claim: it calls for interpretation of the immunity-granting instruments against the Constitution, a matter within the ELRC's specialised jurisdiction. Upholding the objection would limit that jurisdiction and cause a miscarriage of justice. The court overruled the preliminary objection with costs in the petition.

Key legal issues

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01

Whether ICIPE's immunity from suit and legal process under the Privileges and Immunities Act, the 1989 Order and the ICIPE Charter bars the petition at the threshold

Holding

The preliminary objection was overruled because the petition is not an ordinary employment claim; it calls for interpretation of the immunity-granting instruments against the Constitution, which falls within the specialised jurisdiction of the Employment and Labour Relations Court.

Reasoning

The court accepted that the Respondent enjoys immunity pursuant to duly recognised legal instruments, but held that the petition traverses constitutional declarations as well as specific prayers for payment of dues. Interpreting the instruments granting immunity vis-a-vis the Constitution is within the specialised jurisdiction of the ELRC in employment and labour matters. Upholding the objection would limit that jurisdiction, cause a miscarriage of justice and stunt the growth of jurisprudence in this nascent branch of law.

p. 4
02

The proper characterisation of a preliminary objection

Holding

The court adopted the Mukisa Biscuit definition: a preliminary objection raises a pure point of law on assumed facts and cannot be raised where facts must be ascertained or discretion exercised.

Reasoning

The court cited the classic definition from Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Limited as the governing test for what constitutes a valid preliminary objection, framing the single issue as whether the Respondent's objection warranted dismissal of the petition in limine.

p. 3

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
  • Upholding an immunity-based preliminary objection against a petition calling for interpretation of the immunity-granting instruments vis-a-vis the Constitution would improperly limit the specialised jurisdiction of the Employment and Labour Relations Court.

Court orders

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  1. 1.The preliminary objection raised by the Respondent is overruled with costs being in the petition
Jurisdiction invoked
Constitution of Kenya, 2010 - specialised jurisdiction of the Employment and Labour Relations Court to interpret the Constitution in employment and labour related matters; Articles 22, 28 and 41

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Nancy Macnally v International Centre of Insect Physiology and Ecology (ICIPE) [2016] KEELRC 114 (KLR)", Case Analysis (2016). Petition (Employment and Labour Relations Court, Nairobi) - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/114/eng@2016-12-20

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