Eric Kyalo Mulinge & another v Hwan Sung Industries (K) Limited [2017] KEELRC 1995 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the ELRC lacks jurisdiction under Article 165(5) of the Constitution to grant the injunctive and security orders sought because they relate to land
- 2.Whether the preliminary objection is a proper objection within the Mukisa Biscuit formulation
- 3.Whether the orders sought are connected to the employment and labour relations dispute such that this court can issue them
Key legal issues
#Whether the ELRC can issue interim orders concerning land in an employment dispute
Yes - where the orders emanate from and are connected to an employment relationship, the court has jurisdiction notwithstanding that the subject property is land
The court held that the claim was founded on the employment relationship and the termination of the claimants' employment. The injunctive orders and security sought were anchored in the Memorandum of Claim and linked to the final relief, serving to secure any decree. The court's mandate over employment and labour relations and connected purposes covers such orders; removing the claimants to another court would leave them in limbo.
Nature of a proper preliminary objection
The Mukisa Biscuit definition applies - objections must be on a point of law arising from pleadings which may dispose of the suit
The court invoked the classic formulation that a preliminary objection must rest on a point of law pleaded or arising by clear implication from the pleadings, capable of disposing of the suit, citing jurisdiction, limitation or arbitration clauses as examples. The jurisdictional challenge was treated as such a point of law and addressed on its merits.
Legal principles established
#- Where a court's jurisdiction is challenged, all else must stop and the question of jurisdiction addressed first
- The ELRC's jurisdiction is not confined to employer-employee disputes but extends to employment and labour relations and connected purposes
Court orders
#- 1.The preliminary objection filed by the respondent is dismissed
- 2.Costs of the preliminary objection to the claimants
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(a) of the Constitution and section 12 of the Employment and Labour Relations Court Act
Relief refused
#Respondent's request that the claim be dismissed for want of jurisdiction with costs
The court found a clear link between the orders sought and the employment relationship, so the objection lacked merit
Costs
Preliminary objection dismissed with costs to the claimants
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Noting the above, I find a clear path, connection and link between matters set out by the claimants and the respondent as being based on employment and labour relations.
To remove the claimants from this court to any other place would be to throw them into limbo. There would be nowhere else for them to anchor their case.
The objections filed by the respondent have no merit and are hereby dismissed with costs to the claimants. Orders accordingly.
Issues in the judgment
#The judgment attributes Yusuf Gitau Abdallah and Peter Nganga Muiruri to the Supreme Court, though the underlying case numbers suggest otherwise
The judgment cites the Employment and Labour Relations Court Act both as 2011 and 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Eric Kyalo Mulinge & another v Hwan Sung Industries (K) Limited [2017] KEELRC 1995 (KLR)", Case Analysis (2017). Not stated in the judgment (Employment and Labour Relations Court cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1995/eng@2017-11-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.