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ELRCPartially AllowedNot stated in judgment (Notice of Motion dated 17th December 2018)· [2019] KEELRC 2292 (KLR)

Celina Atieno Ogutu v Undugu Society of Kenya [2019] KEELRC 2292 (KLR)

Employment and Labour Relations Court
15 February 2019
MOMaureen Onyango
2,218 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court confirmed it can hear defamation claims tied to an employment dispute, and allowed the employee to amend her claim to add details.

What this practically means

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Executive summary

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The claimant, Celina Atieno Ogutu, applied by notice of motion dated 17th December 2018, under Section 12 of the Employment and Labour Relations Court Act and Rule 14(6) of the ELRC (Procedure) Rules, for leave to amend her statement of claim by furnishing better particulars of an already pleaded defamation claim arising from allegedly doctored and libellous minutes of a meeting of 6th July 2017. The respondent, through its Board Chairman Wilfred Onono, opposed the application, contending that the defamation allegations fell outside the court's jurisdiction under Section 12(1) of the ELRC Act and that the application was an abuse of process. In written submissions, the claimant relied on Paramount Bank Limited v Naqvi Syed Qamara (Court of Appeal) to show that employment-related defamation is within the court's jurisdiction; the respondent relied on KEMRI v Davy Kiprotich Koech and the Supreme Court's decision in Samuel Kamau Macharia v KCB on the limits of jurisdiction. Justice Maureen Onyango reviewed the jurisprudence on the ELRC's accrued and consequential jurisdiction, including George Joshua Okungu v Kenya Pipeline and Wilbert Kipsang Choge, and Australian authorities on accrued jurisdiction. She held that jurisdiction is determined by the dominant subject matter and, once attracted, extends to all secondary issues; that the defamation averments were already pleaded; and that the respondent had expressly admitted the court's jurisdiction in its memorandum of reply. Leave to amend was granted, with corresponding leave for the respondent to file a defence, and no orders as to costs.

Key legal issues

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01

Whether the ELRC has jurisdiction over defamation claims pleaded as consequential to an employment dispute

Holding

The court has jurisdiction over employment-related defamation where it flows from the employment dispute; jurisdiction is attracted by the dominant subject matter and extends to consequential or accrued aspects of the dispute.

Reasoning

Relying on its earlier decisions including George Joshua Okungu v Kenya Pipeline, Wilbert Kipsang Choge and Naqvi Syed Qmar v Paramount Bank, the court held that once jurisdiction is attracted by the employment dispute's factual background, the court is clothed with accrued or consequential jurisdiction to determine the whole matter, including defamation claims, avoiding duplicity and uneconomical splitting of claims among courts of equal status.

p. 2
02

Whether leave to amend should be granted to supply better particulars of an already pleaded claim

Holding

Leave was granted because the amendment was intended to furnish better particulars of a claim already pleaded, and the respondent had expressly admitted the court's jurisdiction in its memorandum of reply.

Reasoning

The claimant's counsel submitted, and the respondent agreed, that supplying better particulars is a legitimate reason for amendment. The respondent's objection that the amendments introduced a cause of action outside jurisdiction failed because the defamation averments were already pleaded in paragraphs 40 and 41 of the claim and jurisdiction was expressly admitted at paragraph 42 of the memorandum of reply.

p. 3

Legal principles established

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  • Jurisdiction is determined from the most dominant issue; once seized of the dominant dispute, the court is clothed with jurisdiction over all secondary issues arising from the same facts.
  • The ELRC's jurisdiction extends to all disputes relating to employment and labour relations, including consequential claims such as employment-related defamation, not merely employer-employee disputes.
  • Courts do not encourage multiplicity of actions arising from the same facts.

Court orders

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  1. 1.Leave granted to the claimant to file the Amended Claim within 14 days
  2. 2.Leave granted to the respondent to file a defence to the Amended Claim within 14 days of service
  3. 3.No orders for costs of the application

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12 (including Section 12(1))
  • Employment and Labour Relations Court (Procedure) RulesRule 14(6) and Rule 14(7) (referred to in the affidavit as Rule 114(7))
  • Constitution of KenyaArticle 162(2)(a)
  • Industrial Court Act 2011Section 4(1)
  • Trade Dispute Act Cap 234not specified

Cases cited (17)

  • Paramount Bank Limited –V- Vaqvi Syed Qamara and Another
    (2017) eKLR
  • Kenya Medical Research Institute –V- Davy Kiprotich Koech
    Civil Appeal No. 207 of 2013
  • Samuel Kamau Macharia vs KCB & 2 Others
    Civil Application No. 2 of 2011
  • USIU Vs. The AG
    (2012) eKLR
  • Prof. D. N. Mugedi Vs. Kenyatta University & 3 Others
    Civil Appeal No. 6 of 2012
  • TSC v. KNUT
    Petition No. 72 of 2015
  • Dr. Anne Kinyua v. Nyayo Tea Zone
    (2012) eKLR
  • Kenya Commercial Bank v. Titus Kilonzo and 24 others
    (2006) eKLR
  • George Joshua Okungu v Kenya Pipeline Company Limited & 3 others
    [2016] eKLR
  • Wilbert Kipsang Choge & 6 Others v. Communication Authority of Kenya & Another
    (2016) eKLR
  • Dean Patty v. Commonwealth Bank of Australia
    (2000) FCA 1072
  • Philip Morris Inc v. Adam P. Brown Male Fashions Ltd
    (1981) 148 CLR
  • Naqvi Syed Qmar v Paramount Bank Limited & another
    [2015] eKLR
  • Hakika Transporters Services Limited v. Kenya Long Distance Truck Drivers and Allied Workers Union
    [2015] e-KLR
  • Beatrice Achieng Osir v. Board of Trustees Teleposta Pension Scheme
  • George Onyango Akuti v. G4S Security Services Limited
    [2013] e-KLR
  • Stanley Mungai Muchai v. National Oil Corporation
    [2012] e-KLR
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act and Article 162(2)(a) of the Constitution; application brought under Rule 14(6) of the Employment and Labour Relations Court (Procedure) Rules

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, "Celina Atieno Ogutu v Undugu Society of Kenya [2019] KEELRC 2292 (KLR)", Case Analysis (2019). Not stated in judgment (Notice of Motion dated 17th December 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2292/eng@2019-02-15

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