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ELRCDismissedNot stated in judgment (Memorandum of Claim dated 2nd August 2012, filed 27th August 2012)· [2013] KEELRC 184 (KLR)

Martha Ilabonga Kasaya v Dolly Kilani & 2 others [2013] KEELRC 184 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
15 May 2013
DMD.K. Njagi Marete
634 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Employment Court dismissed an unfair termination claim because it was filed against the wrong people instead of the deceased employer's estate representative.

What this practically means

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Executive summary

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The claimant filed a Memorandum of Claim dated August 2012 citing unfair termination and failure to adhere to the Employment Act, 2007. The 2nd and 3rd respondents filed a response and a notice of preliminary objection dated 8th November 2012, contending that the claim had no basis in law and was incompetent because they were not the personal representatives of the deceased's estate. At the hearing of the preliminary objection, counsel for the 2nd and 3rd respondents submitted that no employment relationship existed between the claimant and those respondents, as the claimant's own pleadings admitted, rendering the claim incompetent, misconceived and an abuse of court process. They further argued that any claim properly lay under Section 4 of the Law of Succession Act (Chapter 160) against the personal representatives of the deceased employer. The court found that the employment relationship pleaded against the 2nd and 3rd respondents was not defined and did not disclose a lawful employment contract; their possible relationship with the deceased employer did not bind them to the employment contract, so any claim against them would fail for misjoinder of parties. The court held the claimant should have identified the personal representative of Geeta Mandagia, the deceased, and sued that representative and the estate. Upholding the preliminary objection, the court dismissed the claim with no order as to costs.

Key legal issues

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01

Whether the claim is competent against parties who are not the deceased employer's personal representatives

Holding

The claim was incompetent; the claimant ought to have sued the personal representative of the deceased employer and the estate

Reasoning

The deceased claimant was an employee of the 1st respondent before her demise. Allegations against the other respondents did not disclose an employment contract in law. Section 4 of the Law of Succession Act governs claims against personal representatives, and suing anyone else is incompetent and an abuse of process.

p. 2
02

Whether the 2nd and 3rd respondents could be bound by the deceased employer's employment contract

Holding

They could not; any claim against them would fail for misjoinder of parties

Reasoning

The court found the employment relationship pleaded was not defined as against the 2nd and 3rd respondents. Their possible familial or other relationship with the deceased employer did not bind them to the employment contract, making the claim against them a misjoinder.

p. 2

Legal principles established

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  • A claim arising from the employment of a deceased person must be brought against the personal representative of the deceased's estate under the Law of Succession Act
  • Relationship to a deceased employer does not bind a party to the deceased's employment contract, and suit against a non-party fails for misjoinder

Court orders

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  1. 1.Preliminary objection of the 2nd and 3rd respondents upheld
  2. 2.Claim dismissed
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment Act2007
  • Law of Succession ActSection 4, Chapter 160, Laws of Kenya
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 (claim of unfair termination and failure to adhere to the Employment Act, 2007)

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, "Martha Ilabonga Kasaya v Dolly Kilani & 2 others [2013] KEELRC 184 (KLR)", Case Analysis (2013). Not stated in judgment (Memorandum of Claim dated 2nd August 2012, filed 27th August 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/184/eng@2013-05-15

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