Jalango v Mansingh

3. The application is anchored on the grounds which are set out on the face thereof and the adavit of the Respondent. The Respondent avers that the Claimant accused him of publishing defamatory material against him to Stanbic Bank through a letter dated 26th October 2022. He avers that the tort of defamation which the Claimant accuses him of can only be adjudged by the High Court. 4. The Respondent asserts that the dispute as framed does not constitute an employment dispute within the meaning of section 12 of the Employment and Labour Relations Court Act. He further contends that there is no employer-employee relationship between the parties. As such, he avers that the suit is incompetent and ought to be struck out. 5. The Claimant has opposed the application. He asserts that the defamatory words complained about were published by the Respondent in the course of an employment relationship. 6. The Claimant avers that the Respondent played a central role in the events which led to the termination of his (the Claimant’s) contract of service. He asserts that it is the Respondent who led the complaint that resulted in the unfair termination of his (the Claimant’s) employment. 7. The Claimant further relies on section 2 of the Employment Act to argue that the Respondent, being a manager of his employer at the time the defamatory words were allegedly issued, stood in the position of his (the Claimant’s) employer. As such, he contends that there was an employer-employee relationship between them. 8. The Claimant further argues that the law grants this court jurisdiction to adjudicate on claims which arise from and are ancillary to an employment relationship, including defamation of character. Consequently, he asserts that since the instant dispute between the parties arose in the course of employment, the court has jurisdiction to adjudicate the matter. 9. Besides the aforesaid application led by the Respondent, the Claimant led another application dated 19th September 2025 seeking an order that the cause be prosecuted as an undefended suit. The application is supported by the Claimant’s adavit and the grounds which are enumerated on the face thereof. 10. The Claimant avers that although the Respondent was served with Summons to Enter Appearance in the cause, he only entered appearance but did not le a defense within the time that the law provides or at all. As such, he (the Claimant) avers that the matter is t to be adjudicated as an undefended cause. 11. The Respondent has opposed the application. He avers that since he had raised an objection to the jurisdiction of the court to entertain the case, it was only sensible for the court to resolve this issue rst since it was going to determine whether there was need to le a comprehensive defense to the suit. He asserts that rule 33 of the court’s rules entitles him to raise a point of law which the court will then be bound to determine rst before parties can take further steps in the cause, including ling of further pleadings. Analysis 12. The court takes note of the fact that although the Respondent has led the instant application to dispute the court’s jurisdiction to entertain the dispute on the ground that there is no employment relationship between the parties, he is yet to le a defense to the cause to contest this fact. In the court’s view, it would have been better if the Respondent had led his defense to the action rst to raise the matter before he could le the instant application in order to give anchorage to it (the application). This is because the issue which he raises in the application regarding whether or not there was an https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2539/eng@2026-09-24 2

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employment relationship between the parties is anchored both on law and fact. As such, it is not a pure point of law which may be raised without being alluded to in the pleadings. 13. That said, it is noteworthy that the basis for the Respondent’s contention that the court has no jurisdiction over the dispute is the assertion that there was no employment relationship between the parties. In response to the assertion, the Claimant has invoked section 2 of the Employment Act to contend that there was an employment relationship between the parties. According to the Claimant, at the time the Respondent published the impugned statement, he stood in the position of a manager of the employer and was thus deemed as an employer within the meaning of the aforesaid provision of the law. 14. As noted earlier, the question whether the disputants had an employment relationship is both a matter of law and fact. As such, it can only be determined after examining the evidence which they (the parties) will tender on the subject at the trial against the applicable law. 15. It is noted that there is a document which has been placed on the court le which purports to be the Claimant’s contract of service. However, it is not lost to the court that the document is yet to be formally tendered in evidence. 16. As such and in view of the diametrically dissimilar positions expressed by the disputants on the matter, the court is unable to rely on the document at this preliminary stage of the case to make a conclusive determination regarding whether or not there was an employment relationship between the parties to the action. It (the court) will only make this determination after full trial. 17. Regarding the Claimant’s application dated 19th September 2025, the court notes that the Respondent indeed entered appearance in the cause and raised an objection to the court’s jurisdiction to entertain the cause. In the court’s view, this signies his (the Respondent’s) intention to defend the claim. As such, it will not be appropriate to lock him out of the substantive cause merely because he opted to rst ask the court to address the issue of jurisdiction before he could le his substantive defense to the suit. Determination 18. The upshot is that:a. The Respondent’s application dated 18th November 2025 is declined with the consequence that:i. The court declines to determine whether there was an employment relationship between the parties at this preliminary stage of the case before it examines the evidence which the parties will tender on the matter during the trial. ii. As such, it (the court) directs that the question of jurisdiction which is anchored on whether the parties had an employment relationship shall be determined after full trial. b. The court declines to grant the Claimant’s application dated 19th September 2025 since the Respondent has signied an intention to defend the suit. c. The Respondent is granted the opportunity to le and serve a defense to the cause within 7 days of this ruling to enable the parties to set down the matter for pre-trial conference failing which the Claimant will be at liberty to set down the suit for hearing as an undefended cause. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2539/eng@2026-09-24 3

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d. Costs of the two applications shall abide the results of the trial. DATED, SIGNED AND DELIVERED ON THE 24TH DAY OF SEPTEMBER, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Claimant …………….for the Respondent Order In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court. https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2539/eng@2026-09-24 4

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