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ELRCPartially AllowedKisumu Appeal No. E044 of 2023

Okello v Chairman NGCDF Kisumu East Constituncy & 2 others (Appeal E044 of 2023) [2024] KEELRC 818 (KLR)

Employment and Labour Relations Court
17 April 2024
1,366 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that NG-CDF staff employment disputes belong in employment courts, not internal Fund dispute processes.

What this practically means

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Executive summary

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The Appellant, appointed to the Kisumu East NG-CDF committee to represent persons living with disability and later elected chair of the Monitoring and Evaluation Committee, sued the Chairman and Fund Account Manager of the Fund and the area Member of the National Assembly, seeking reinstatement, lost wages, allowances and benefits following his alleged summary dismissal. The Respondents raised a preliminary objection founded on section 56 of the National Government Constituency Development Fund Act, contending the suit offended the statutory dispute resolution mechanism. The Senior Resident Magistrate upheld the objection on the ground of lack of first instance jurisdiction and struck out the Cause. On appeal to the Employment and Labour Relations Court at Kisumu, the Appellant argued the objection was not a pure point of law, that the 2013 Act relied on had been declared illegal by the Supreme Court, and that his claim was governed by the Employment Act. The Respondents defended the ruling. The Court, applying Kamau v Mungai on the role of a first appellate court, held that employment disputes over terms and conditions of service between the Fund and its staff do not arise from the administration of the Act, and that section 56 targets project implementation or tendering disputes. It further declined to extend the Supreme Court's declaration of unconstitutionality of the 2013 Act to the 2015 Act absent a direct challenge. The Court concluded the Magistrate erred in law in declining jurisdiction, vacated and set aside the ruling, and remitted the Cause to a Magistrates Court with jurisdiction, while clarifying that the appeal did not determine the existence of an employment relationship, which remains for the trial court.

Questions the Court framed

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

  1. 1.Whether the Preliminary Objection met the test of a pure point of law
  2. 2.Whether an allegation of unfair termination of employment by an employee of the Fund is a complaint or dispute arising from the administration of the National Government Constituency Development Fund Act under section 56
  3. 3.Whether such a dispute is one of a civil nature warranting referral to the Fund Board in the first instance
  4. 4.Whether the declaration of unconstitutionality of the 2013 Act extends to the 2015 Act relied on by the trial Magistrate

Key legal issues

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01

Scope of the alternative dispute resolution requirement in section 56 of the NG-CDF Act

Holding

Section 56 does not apply to employment disputes about terms and conditions of service; it targets disputes arising from project implementation/tendering

Reasoning

The Court construed section 56 alongside section 22, which contemplates the Board appointing staff on terms and conditions of service. It held that a dispute over such terms is governed by the contract of employment and the Employment Act, not the administration of the Act. The complaints and disputes envisaged by section 56 concern project implementation or tendering between constituency committees and participants, and only such project contractual disputes may take a civil nature warranting Board referral.

p. 4
02

Whether the Supreme Court's declaration against the 2013 NG-CDF Act extends to the 2015 Act relied on by the trial court

Holding

The unconstitutionality of the 2013 Act cannot be assigned to the 2015 Act absent a direct challenge and determination

Reasoning

The Appellant argued the trial court had relied on an illegal law. The Court noted the challenged statute in the Supreme Court case was the 2013 Act, not the 2015 Act which the Senior Resident Magistrate relied on. Without a direct constitutional challenge to the 2015 Act and a clear determination thereof, the Court declined to extend the declaration of unconstitutionality to the 2015 Act.

p. 4
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Role of a first appellate court

Holding

A first appellate court must re-evaluate the evidence and reach its own conclusions, making due allowance for not having seen or heard the witnesses

Reasoning

The Court adopted the guidance in Kamau v Mungai on the duty of a first appellate court. It bore that interdict in mind in reconsidering whether the trial Magistrate correctly declined jurisdiction on the basis of section 56 of the NG-CDF Act.

p. 3

Legal principles established

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  • Disputes about terms and conditions of service between the Fund and its staff do not arise from the administration of the NG-CDF Act; the Employment Act governs such disputes, so section 56 of the NG-CDF Act does not oust the court's jurisdiction over them
  • The complaints and disputes contemplated by section 56 of the NG-CDF Act are those arising from project implementation or tendering, which are the disputes that may take a civil nature

Court orders

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  1. 1.The Ruling of the Senior Resident Magistrate is vacated and set aside
  2. 2.The Cause be placed before a Magistrates Court with jurisdiction for further proceedings

The bench

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

majority

Wrote the judgment

On appeal from
Senior Resident Magistrate's Court
Jurisdiction invoked
First appellate jurisdiction over appeal from Senior Resident Magistrate's Court in an employment cause

Relief refused

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Reinstatement, wages, allowances and benefits as sought in the Memorandum of Claim

The appeal only restored the cause for trial; the court made no determination on the merits and expressly left the question of the employment relationship for the trial court

p. 4

Costs

No costs order recorded in the judgment

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.

In light of the above, the Court vacates and sets aside the Ruling of the Senior Resident Magistrate and orders that the Cause be placed before a Magistrates Court with jurisdiction for further proceedings.
p. 4Final orders - appeal allowed and trial court's ruling set aside
The Court concludes that the Senior Resident Magistrate fell into error of law in declining jurisdiction on the basis of section 56 of the National Government Constituency Development Fund Act.
p. 4Conclusion on jurisdiction
It is the terms and conditions of the contract of employment and the general law of employment, the Employment Act which ought to be invoked.
p. 3Governing law for employment disputes with the Fund

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, "Okello v Chairman NGCDF Kisumu East Constituncy & 2 others (Appeal E044 of 2023) [2024] KEELRC 818 (KLR)", Case Analysis (2024). Kisumu Appeal No. E044 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/818/eng@2024-04-17

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