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ELRCDismissedNot stated in judgment

Anungo v Nyakundi t/a GN Nyakundi Advocates (Cause E893 of 2024) [2025] KEELRC 270 (KLR)

Employment and Labour Relations Court
6 February 2025
RSRadido Stephen
813 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 employment court dismissed both a lawyer's urgent salary claims and the firm's jurisdiction challenge, sending the real dispute to a full hearing.

What this practically means

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Executive summary

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The Claimant, Edgar Anungo, sued Geofirey Nyakundi t/a G.N. Nyakundi Advocates for unfair labour practices and breach of contract, and filed a Notice of Motion seeking interim release of his allegedly withheld September 2024 salary, injunctions against further withholding of dues, adverse action and tampering with records, and an order for production of documents in the Respondent's custody. The Court declined to certify the Motion urgent or grant ex-parte orders. The Respondent filed a Notice of Preliminary Objection contending the Claimant was engaged as a consultant, not an employee, so the dispute arose from a consultancy contract and the Court lacked jurisdiction under Article 162(2)(a) of the Constitution and section 12 of the ELRC Act, and that the claim should be struck out. A replying affidavit also argued the Motion sought final orders at an interlocutory stage and that the Claimant failed to give a 30-day resignation notice. Both parties filed submissions. The Court, in a ruling delivered virtually and signed in Machakos on 6 February 2025, held that the preliminary objection required interrogation of contested evidence about the employment relationship and thus fell short of the Mukisa Biscuit standard. It further held that the transient orders (ii) and (iii) had been overtaken by events, and that the Claimant had not justified bypassing the formal discovery process. Both the Motion and the Preliminary Objection were dismissed, with each party bearing their own costs. The main suit proceeds to hearing.

Questions the Court framed

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

  1. 1.Whether the Notice of Preliminary Objection met the standard in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors, including whether the Court lacked jurisdiction over the dispute
  2. 2.Whether the Claimant's Notice of Motion deserved the interim orders sought

Key legal issues

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01

Whether the preliminary objection on jurisdiction could succeed on contested facts

Holding

It failed because it depended on contested evidence about whether an employment relationship existed

Reasoning

The Respondent contended the Claimant was a consultant, not an employee, so the ELRC lacked jurisdiction. The Court held that determining this would require interrogating contested evidence, since both parties accused each other of breach and disputed the employment relationship. Such a preliminary objection does not meet the Mukisa Biscuit standard, which requires objections decided on pure points of law without ascertainment of facts.

p. 2
02

Whether the interlocutory orders in the Motion should issue

Holding

The salary-release and injunction orders were overtaken by events, and the discovery order was premature given the formal discovery route

Reasoning

Orders (ii) and (iii) had been declined ex-parte and were transient. The document-production order could not issue because the Claimant gave no reason for bypassing the formal pre-trial discovery procedure. The Motion was therefore dismissed with no order as to costs.

p. 3

Legal principles established

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  • A preliminary objection that requires the court to interrogate contested matters of evidence does not meet the Mukisa Biscuit standard

Court orders

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  1. 1.The Notice of Preliminary Objection is dismissed
  2. 2.The Claimant's Notice of Motion is dismissed
  3. 3.Each party to bear their own costs

The bench

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

RS
majority

Wrote the judgment

Jurisdiction invoked
Article 162(2)(a) of the Constitution of Kenya, 2010 as read with section 12 of the Employment and Labour Relations Court Act, Cap 8E (raised by the Respondent; contested jurisdiction)

Relief refused

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Interim order compelling release of withheld September salary

The proposed orders were transient in nature and overtaken by events after being declined at the ex-parte stage

p. 2

Interim and interlocutory injunctions restraining withholding of dues, adverse action and tampering with records

Declined; the Motion was found devoid of merit alongside the Preliminary Objection

p. 3

Order directing production of documents and information listed in Appendix 1

There is a formal way of seeking discovery prior to hearing which the Claimant did not follow

p. 3

Costs of the application provided for by the Respondent

Each party ordered to bear own costs

p. 3

Costs

Each party to bear their own costs.

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.

One, the Notice of Preliminary Objection calls upon the Court to delve into and interrogate matters of evidence which appear controversial or contested.
p. 2Preliminary objection standard
In other words, the Preliminary Objection does not meet the standard set in Mukisa Biscuit Manufacturing Co Ltd v West End Distributors (1969) EA 696.
p. 2Jurisdictional objection on contested facts
Arising from the above both the Motion and Notice of Preliminary Objection are dismissed. Each party to bear their own costs.
p. 3Final orders

Issues in the judgment

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minor

The judgment cites 'Article 162(2)(a) (sic)' of the Kenya, 2010, which the judgment itself marks as an error; the intended provision is likely Article 162(2) of the Constitution

minor

No case number or neutral citation is provided anywhere in the judgment

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, "Anungo v Nyakundi t/a GN Nyakundi Advocates (Cause E893 of 2024) [2025] KEELRC 270 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/270/eng@2025-02-06

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