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ELRCOtherNot stated in judgment· [2025] KEELRC 2946 (KLR)

Njoki v M-Kopa Kenya Limited & another; British International Investments (BII) Scots LLP & another (Interested Parties); Oenga & 2 others (Proposed Interested Parties) (Petition E102 of 2025) [2025] KEELRC 2946 (KLR)

Employment and Labour Relations Court
30 October 2025
BOByram Ongaya
4,092 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that an employee-shareholder's claim about share dilution belongs in the High Court, not the Employment Court.

What this practically means

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Executive summary

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The petitioner, a current or former employee of the 1st respondent, petitioned on behalf of herself and a class of current and former Kenyan and other African employees of M-Kopa, alleging racial discrimination in the company's employee share option arrangements. She sought declarations of violations of various constitutional articles, damages, compensation for dilution of ordinary shares and options, an apology, and restructuring of the share option plans to remove racial segregation. The 1st and 2nd respondents and the two interested parties filed preliminary objections contending that the dispute is a shareholders' dispute outside the ELRC's jurisdiction, that exclusive jurisdiction clauses in the Shareholders Agreement and Recapitalisation Agreement vest disputes in the Courts of England and Wales, and that the petition is defective and an abuse of process. The petitioner also applied for empanelment of a bench of at least three judges under Article 165(4), sought conservatory orders restraining the Series F Financing Plan transaction, and opposed the joinder of proposed 3rd, 4th and 5th interested parties. The Court examined the pleadings and held that the primary dispute concerns shareholding structure, share classifications and dilution - matters of corporate law and articles of association independent of the employment relationship. No employment rights or obligations were invoked. Upholding the preliminary objections, the Court held it lacked jurisdiction, set aside its orders on the residual applications for determination by the competent court, and transferred the petition to the Constitutional Division of the High Court, with costs in the cause.

Key legal issues

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01

Whether the petition, alleging racial discrimination in a company's share option plans, is an employment dispute within ELRC jurisdiction

Holding

The Court held the primary dispute concerns shareholding structure and shareholder rights, which are independent of the employment contract, so the ELRC lacks jurisdiction

Reasoning

The Court examined the pleadings and found the petition alleges discrimination in the classification and dilution of shares of employees who are ordinary shareholders. Shareholding rights are protected by corporate law and articles of association, not the employment contract. Nothing in the petition invoked employment rights and obligations, so the specialised jurisdiction was not engaged and the preliminary objections were upheld.

p. 9
02

Whether to strike out or transfer the petition

Holding

The Court chose to transfer the petition to the Constitutional Division of the High Court rather than strike it out, guided by Article 159 principles

Reasoning

Cognisant of prevailing practice of transferring files between the High Court and co-equal specialised courts, and applying the principles of Article 159 of the Constitution, the Court considered it just to transfer the petition to the appropriate court for hearing and disposal rather than terminate it.

p. 9

Legal principles established

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  • An individual employee who is also a shareholder holds shareholding rights that are separate and independent from the employment relationship, and disputes about shareholding structure fall outside the ELRC's specialised jurisdiction
  • A petitioner is bound by its pleadings in determining the nature of the dispute for jurisdictional purposes

Court orders

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  1. 1.Declaration that the Court lacks jurisdiction to hear and determine the petition as it raises issues about shareholding structure and not employment and labour rights and obligations
  2. 2.Orders on the residual preliminary points of objection, application for empanelment, application for conservatory orders and application for joinder set aside to be determined by the Court with requisite jurisdiction
  3. 3.Petition transferred to the Constitutional Division of the High Court for hearing and disposal, with mention before the Divisional Presiding Judge on 05.11.2025 at 9.00am
  4. 4.Deputy Registrar to cause transfer of the file to the High Court Registry at Nairobi forthwith
  5. 5.Costs in the cause
Jurisdiction invoked
Article 162(2) of the Constitution of Kenya (ELRC jurisdiction); Article 165(4) invoked in the empanelment application

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, "Njoki v M-Kopa Kenya Limited & another; British International Investments (BII) Scots LLP & another (Interested Parties); Oenga & 2 others (Proposed Interested Parties) (Petition E102 of 2025) [2025] KEELRC 2946 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2946/eng@2025-10-30

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