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ELRCDismissedNot stated in extract

Bitok v Steel Structures Limited (Cause E515 of 2024) [2025] KEELRC 40 (KLR)

Employment and Labour Relations Court
21 January 2025
782 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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The Employment Court ruled that a preliminary objection cannot be used to argue there was no employment relationship, because that question requires evidence at a full hearing.

What this practically means

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Executive summary

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The Respondent filed a preliminary objection dated 17th October 2024 seeking striking out of the Claimant's Statement of Claim dated 24th February 2022. The objection raised three jurisdictional grounds: that the claim was grounded on 'the tort of contract' and thus outside the Court's jurisdiction under Article 162(2)(b) of the Constitution; that there was no employer-employee relationship between the parties, so the Court lacked jurisdiction; and that the claim contravened Article 162(2)(a) and Section 12(1)(a) of the Employment and Labour Relations Court Act, besides being misconceived, incompetent and an abuse of process. The Claimant, who described himself as a subcontractor at the Respondent's head office until December 2020, sought Kshs. 350,000 withheld retention fee, Kshs. 170,000 for mental distress, Kshs. 50,000 for reputational damage, and 12 months' salary as compensation. Wasilwa J held that the objection turned on whether an employer-employee relationship existed, a question requiring production of evidence and reliance on factual issues, and therefore fell outside the proper scope of a preliminary objection as conceived in the Mukisa Biscuit decision. The preliminary objection was dismissed and the claim directed to proceed for hearing to conclusion. No costs order appears in the extract. The ruling was delivered virtually at Nairobi on 21st January 2025 under the Covid-19 practice directions.

Questions the Court framed

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

  1. 1.Whether the Claimant's claim is grounded on tort and therefore outside the Court's jurisdiction under Article 162(2)(b) of the Constitution
  2. 2.Whether the absence of an employer-employee relationship between the Claimant and Respondent ousts the Court's jurisdiction
  3. 3.Whether the claim is misconceived, incompetent and an abuse of the Court process and should be struck out

Key legal issues

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01

Whether the preliminary objection on jurisdiction (absence of employer-employee relationship) was sustainable

Holding

The preliminary objection was not merited and was dismissed; the claim proceeds to hearing

Reasoning

The Respondent argued that no employer-employee relationship existed, ousting the Court's jurisdiction under Article 162(2) and Section 12(1)(a) of the ELRC Act. The court held that establishing whether such a relationship exists requires production of evidence and reliance on factual issues, which cannot be determined on a preliminary objection as understood in the Mukisa Biscuit formulation. The objection therefore failed and the substantive claim was directed to full hearing.

p. 2

Legal principles established

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  • A preliminary objection cannot rest on facts requiring evidence; an issue requiring proof of an employer-employee relationship is beyond the purview of a preliminary objection

Court orders

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  1. 1.The preliminary objection dated 17th October 2024 is dismissed
  2. 2.The claim to proceed for hearing to conclusion

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (jurisdiction challenged under Article 162(2)(a) and (b) and Section 12(1)(a) of the Act)

Relief refused

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Striking out of the Statement of Claim

The preliminary objection was not merited because it required proof of factual matters

p. 2

Costs

No costs order made in the extract

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.

It is my finding that the preliminary objection raised is not in the circumstances merited. I accordingly dismiss the preliminary objection and direct the claim to proceed for hearing to conclusion.
p. 2Disposition - dismissal of preliminary objection
Proving an existence of such a relationship would require production of evidence and reliance on factual issues which in my view go beyond the purview of Mukisa Biscuit case.
p. 2Nature of preliminary objections - factual inquiries excluded

Issues in the judgment

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minor

The preliminary objection ground describes the claim as 'grounded on the tort of contract', an apparently contradictory formulation

minor

The ruling refers to 'the preliminary objection raised by the applicant' although the objection was filed by the Respondent

material

Case title, case number and party names are not stated in the extract provided

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, "Bitok v Steel Structures Limited (Cause E515 of 2024) [2025] KEELRC 40 (KLR)", Case Analysis (2025). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/40/eng@2025-01-21

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