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ELRCOtherNot stated in the judgment

Oyieke v Kenya National Trading Corporation Ltd (Cause E021 of 2024) [2024] KEELRC 1245 (KLR)

Employment and Labour Relations Court
15 May 2024
628 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employer couldn't block an unfair termination case by pointing to internal dispute rules without proving those rules actually applied.

What this practically means

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Executive summary

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The Claimant, Jack Omondi Oyieke, sued Kenya National Trading Corporation Ltd on 28 March 2024 for unfair termination of employment and breach of contract. The Respondent filed a Notice of Preliminary Objection on 15 April 2024 raising nine grounds: lack of jurisdiction for failure to exhaust internal dispute resolution mechanisms under its HR Policy Manual, failure to exhaust alternative dispute resolution under Article 159(2)(c) of the Constitution, ouster under Section 74 of the Public Service Commission Act and Regulation 68(1) of the PSC Regulations, 2020, defective affidavits under the Oaths and Statutory Declarations Act, non-disclosure of material facts, and abuse of process. Directions were issued for submissions, with the Respondent to file by 26 April 2024; it filed on 9 May 2024 without explanation. The Court expunged the late submissions, noting the delay frustrated the expeditious disposal contemplated by the ELRC Act and amounted to a failure to prosecute the objection. Considering the legal framework nonetheless, the Court found the Respondent had placed no material demonstrating a nexus between its disciplinary processes and the Public Service Commission or the PSC Act, undermining the section 74 objection. The Court struck out the Notice of Preliminary Objection, directed that any jurisdictional points be taken at the hearing on the merits and included in the Response, and awarded costs to the Claimant.

Questions the Court framed

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

  1. 1.Whether the Court lacks jurisdiction for failure to exhaust internal and alternative dispute resolution mechanisms under Article 159(2)(c) of the Constitution and clause 11.23 of the Respondent's HR Policy and Procedures Manual
  2. 2.Whether Section 74 of the Public Service Commission Act and Regulation 68(1) of the Public Service Commission Regulations, 2020 oust the Court's jurisdiction
  3. 3.Whether the supporting and verifying affidavits are defective under Section 5 of the Oaths and Statutory Declarations Act
  4. 4.Whether the suit is frivolous, vexatious and an abuse of process for non-disclosure of material facts

Key legal issues

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01

Whether the Court lacks jurisdiction under Section 74 of the Public Service Commission Act

Holding

The preliminary objection failed because the Respondent did not demonstrate that the Public Service Commission Act applied to its disciplinary processes

Reasoning

The Respondent relied on Section 74 of the Public Service Commission Act and Regulation 68(1) of the PSC Regulations to argue that the Court lacked jurisdiction. However, the Respondent did not adduce any material showing a nexus between its internal disciplinary processes and the Public Service Commission or the Act. The Court also noted an assumption that the PSC had appointed an authorised officer under section 74, but no evidence of this was placed before it.

p. 2
02

Treatment of late-filed submissions

Holding

The Respondent's submissions filed out of time without explanation were expunged

Reasoning

The Respondent filed submissions on 9 May 2024 despite a direction to file by 26 April 2024, without explaining the delay. The Court held that this frustrated the expeditious disposal of the Cause contemplated by the ELRC Act and that the Respondent had failed to prosecute the preliminary objection. The submissions were accordingly expunged, though the Court still considered the legal framework relied upon.

p. 2

Legal principles established

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  • A party invoking an internal or statutory dispute resolution mechanism to oust the Court's jurisdiction must place material before the Court demonstrating a nexus between its processes and the relevant statutory framework
  • Submissions filed out of court-ordered timelines without explanation may be expunged from the record

Court orders

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  1. 1.The Notice of Preliminary Objection is struck out
  2. 2.Any preliminary legal points on jurisdiction to be taken as part of the hearing on the merits and included, if at all, in the Response
  3. 3.The Claimant to have costs
  4. 4.The Respondent's submissions filed out of time are expunged from the record

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court Act (Court's constitutive statute)

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 strikes out the Notice of Preliminary Objection.
p. 2Disposition - striking out of preliminary objection
The Court further orders that any preliminary legal points on jurisdiction will be taken as part of the hearing on the merits and should be included if at all in the Response.
p. 2Jurisdictional points deferred to hearing on the merits
The Court further orders that any preliminary legal points on jurisdiction will be taken as part of the hearing on the merits
p. 2Final orders
The Claimant to have costs.
p. 2Costs order
the Respondent has not placed any material before the Court to demonstrate a nexus between its disciplinary processes and the Public Service Commission of Kenya or the Public Service Commission Act
p. 2Burden to demonstrate nexus to statutory dispute mechanism

Issues in the judgment

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minor

No case number or citation for the Cause appears in the judgment

minor

The judgment records the Claimant filing submissions before the Respondent despite later stating the Respondent filed late, with no explanation offered by the Respondent

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, "Oyieke v Kenya National Trading Corporation Ltd (Cause E021 of 2024) [2024] KEELRC 1245 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1245/eng@2024-05-15

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