Kenya Hotels and Allied Workers Union v Nyanza Club (Cause E004 of 2021) [2023] KEELRC 3025 (KLR)
The bottom line
#Kenya's Employment Court dismissed a bid to strike out an application, ruling that preliminary objections must be pure points of law, not disputed facts.
What this practically means
#Executive summary
#Key legal issues
#Whether the court had jurisdiction to entertain the Respondent's application dated 29th September, 2023
The court found no prior review of the 26th September 2023 dismissal orders existed, so the application was not a second review; jurisdiction was not ousted
The Claimant argued the 29th September 2023 application sought review of orders already reviewed on 27th April 2023, invoking rule 33(6) and Brian Muchiri Waihenya v. Jubilee Hauliers. The court distinguished the two: the April orders allowed instalment payment of the decretal sum, whereas the September application targeted the dismissal of the 31st July 2023 application for non-attendance, which had never been reviewed.
Whether the preliminary objection met the Mukisa Biscuit threshold
It did not; it raised factual issues requiring ascertainment
Relying on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, the court held a preliminary objection must be a pure point of law pleaded or arising by clear implication, and cannot be raised where facts must be ascertained or discretion exercised. The Claimant's contentions required determination of facts about which orders were sought and previously reviewed.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot be raised where facts need to be ascertained or where judicial discretion is sought
- Jurisdiction is central; a court without jurisdiction must down its tools
Court orders
#- 1.The Claimant's preliminary objection dated 15th October, 2023 is dismissed with costs to the Respondent
- 2.The Respondent's application dated 29th September, 2023 to be set for hearing on merit and on priority basis
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, rule 33(6)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Hotels and Allied Workers Union v Nyanza Club (Cause E004 of 2021) [2023] KEELRC 3025 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3025/eng@2023-11-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.