1.This ruling relates a Notice of Preliminary Objection dated 1st April, 2022, wherein, the Respondents seek the striking out of the Claimant’s suit on the basis that it is incompetent, bad in law and an abuse of the court process for reason that the Court lacks jurisdiction to hear and determine the Claimant’s claim.
2.The Respondents’ contend that the subject matter in issue does not relate to or arise out of employment between an employer and an employee, but instead, ensues from a contractual or statutory obligation as between the Claimant and the Respondents.
3.In a replying affidavit sworn by David Koross on 30th August, 2022, the Claimant avers that the Respondents’ objection is false and misleading on the premise that the Kshs. 1,006,098,350.09 is money collected by the 2nd Respondent from employees of the 1st Respondent, and which they have failed to remit to the Claimant since 13th April, 2013.
5.It is the Claimant’s assertion that the matter herein, is a matter relating to and arising out of the relationship between an employer and an employee as stipulated under Section 12(1)(a) of the Employment and Labour Relations Court Act.
6.The Claimant further avers that deductions from employees’ salaries and contribution to the provident fund arise directly from an employer/employee relationship.
7.It is the Claimant’s position that Section 19(1) of the Employment Act, provides for deductions from employees’ salaries, which in itself is confirmation that this is an employment issue, and for which jurisdiction lies directly with this court.
8.Parties canvassed the objection by way of written submissions and which have been duly considered.
Analysis and Determination
9.I have carefully considered the Preliminary Objection, the reply by the Claimant and the submissions by both parties. The issue that crystalizes for determination is whether this Court is clothed with jurisdiction to hear and determine the Claimant’s case.
10.The centrality of jurisdiction in matters before courts of law, was aptly encapsulated by Nyarangi J in Owners of Motor Vessel Lilian “S” v Caltex Oil  eKLR in the following words:
12.Article 162(2) of the Constitution provides for the establishment of the Employment and Labour Relations Court as follows: -
14.The Respondents’ contention is that the Claimant is neither an employer nor an employee, and hence the relationship between it and themselves is not that of an employer and an employee, and hence the position that the Court is devoid of jurisdiction to entertain the Claimant’s suit.
15.The Claimant is a pension scheme by which the 1st Respondent is to deduct and remit its employees pension contribution together with their contribution as the employer, to be administered/invested by the Claimant/scheme.
17.The Claimant’s claim is premised on Section 132 of the County Government Act, which provides that all members, officers and staff of a County Government shall subscribe to an existing pension scheme for officers and staff of local government.
19.Further Section 8(3) of the same Act, states: -
20.Section 19 (1) of the employment Act states thus in respect of deductions of wages:
21.The issue in the suit is that the deductions envisaged under Sections 8 (3) and 9 (1) of the Local Authority Provident Fund Act, have not been remitted though deducted by the employer (Respondents) to the Claimant (the pension scheme).
22.The Court is in agreement that the Claimant is neither an employer nor an employee. I however also agree with the Supreme Court that indeed, at the core of a pension scheme is a relationship between an employer and an employee, and which leads me to the conclusion that the Claimant’s claim is a dispute arising out of employment between an employer and an employee.
24.Consequently, I find and hold that the claim herein is squarely and properly within the jurisdiction of this Court.
25.The Respondent’s Preliminary Objection is dismissed with costs.