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ELRCOtherNot stated in the judgment· [2013] KEELRC 565 (KLR)

William Migwi Kanyua v Risk Solutions Insurance Brokers Ltd [2013] KEELRC 565 (KLR)

Industrial Court of Kenya
28 June 2013
JRJames Rika
275 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court refused to strike out a worker's claim, ruling that disputes over whether someone was truly an employee must be tested with evidence at a full hearing.

What this practically means

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Executive summary

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The Respondent raised a preliminary objection challenging the jurisdiction of the Industrial Court, contending that the Claimant was not an employee but a professional seeking professional fees, which ought to be pursued in the Civil Courts, and praying that the Claim be struck out. The Claimant maintained that he was employed as an Accountant for 7 years, headed the Section, was provided with tools of work, and reported to work daily; the arrangement to pay professional fees was agreed between the parties. The Court (James Rika, Judge) held that the preliminary challenge raised matters of fact requiring further enquiry, and that the material on record was insufficient for a conclusive view on the nature of the relationship between the parties. It found that the parties would need to explain their pleadings and documentation through oral evidence so the Court could determine whether an employment relationship exists and, consequently, whether the dispute is triable by the Industrial Court under its Constitutive Act. The Court ordered that the Preliminary Objection be joined to the substantive dispute, that determination be given upon hearing of the dispute in full, and that the parties take a suitable hearing date at the Registry. The claim was not struck out; no costs order was recorded in the judgment.

Key legal issues

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01

Jurisdiction of the Industrial Court over a claim for professional fees where an employment relationship is disputed

Holding

The preliminary objection was not decided summarily; it was joined to the substantive dispute to be determined after full hearing with oral evidence.

Reasoning

The Respondent argued the Claimant was not an employee and that a professional fees claim belongs in the Civil Courts, so the Industrial Court lacks jurisdiction. The Claimant asserted he was employed as an Accountant for 7 years, provided tools of work, and reported daily. The Court found the material insufficient to conclusively determine the nature of the relationship, which required oral evidence on pleadings and documentation.

p. 2

Legal principles established

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  • Where a preliminary jurisdictional challenge rests on contested matters of fact requiring oral evidence, it should be joined to the substantive dispute rather than determined summarily.

Court orders

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  1. 1.The Preliminary Objection is joined to the substantive dispute.
  2. 2.The Court shall give a determination upon hearing of the dispute in full.
  3. 3.Parties to take a suitable hearing date at the Registry.
Jurisdiction invoked
The Industrial Court's constitutive Act of Parliament - jurisdiction limited to disputes involving employers and employees

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, "William Migwi Kanyua v Risk Solutions Insurance Brokers Ltd [2013] KEELRC 565 (KLR)", Case Analysis (2013). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/565/eng@2013-06-28

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