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ELRCDismissedNot stated in the judgment (Industrial Court cause number not indicated on the extracted pages)· [2014] KEELRC 1193 (KLR)

Gilbert Atei Onsomu v Parliamentary Service Commission & another [2014] KEELRC 1193 (KLR)

Industrial Court of Kenya (now Employment and Labour Relations Court)
16 June 2014
MOMaureen Onyango
477 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 ruled the Parliamentary Service Commission can be sued over constituency staff employment disputes because it would pay any judgment.

What this practically means

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Executive summary

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This was a first-instance ruling of the Industrial Court at Nairobi on a Notice of Motion dated 14th September 2012 and filed on 18th September 2012 by the Parliamentary Service Commission, the 1st Respondent, under Rules 16 and 27 of the Industrial Court (Procedure) Rules 2011 and Sections 3 and 12 of the Labour Institutions Act 2007. The Commission sought, first, to have its name struck out from the Claimant's Memorandum of Claim dated 30th July 2012 for improper joinder and, alternatively, the striking out of the entire claim and subsequent pleadings for want of a reasonable cause of action, with costs. The application was supported by the affidavit of Agnes Kamoni. Parties elected to dispose of the matter by written submissions, which were filed in early 2014. The court, per Hon. Lady Justice Maureen Onyango, examined the claim: the Claimant was employed as Constituency Manager for West Mugirango Constituency under a standard-form contract pursuant to the Parliamentary Service (Constituency Officers) Regulations 2005, with recruitment channelled through the Member of Parliament and salaries and constituency funding provided by the Clerk of the National Assembly. The court held that the prayers in the Claim were directed at the Respondents generally, and that if the claim succeeded the Parliamentary Service Commission would be liable to satisfy the decree as the employer under the contract of employment. Its joinder was therefore proper. Finding no merit in the application, the court dismissed it with costs on 16th June 2014, allowing the claim to proceed to hearing.

Key legal issues

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01

Whether the Parliamentary Service Commission was improperly joined as the 1st Respondent in an employment claim brought by a Constituency Manager

Holding

The application for its removal was dismissed; the Commission was properly joined because it would bear liability on any decree

Reasoning

The court examined the Memorandum of Claim and the replies. The Claimant was employed as Constituency Manager for West Mugirango Constituency under a standard-form contract drawn pursuant to the Parliamentary Service (Constituency Officers) Regulations 2005, with recruitment through the Member of Parliament and salaries and office funding provided by the Clerk of the National Assembly. The prayers in the Claim were framed against the Respondents generally, not one Respondent alone. Because the 1st Respondent would be the party liable to satisfy any decree as employer, its joinder was proper and the application failed with costs.

p. 2
02

Whether the Claim and subsequent pleadings disclosed no reasonable cause of action such as to warrant striking out

Holding

The alternative prayer was rejected; the claim was allowed to proceed

Reasoning

This prayer was in the alternative to the removal of the 1st Respondent's name. Having found that the Claim disclosed a viable claim against the properly joined Respondents, and that the application otherwise lacked merit, the court dismissed the application with costs rather than striking out the Claim or any pleadings.

p. 2

Legal principles established

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  • A party sought to be struck out for improper joinder should remain where, if the claim succeeds, it would be liable to satisfy the decree as the employer under the contract of employment.

Court orders

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  1. 1.The Notice of Motion dated 14th September 2012 filed by the 1st Respondent is dismissed
  2. 2.The 1st Respondent's application is dismissed with costs
  3. 3.Orders accordingly, dated and delivered at Nairobi on 16th June 2014

Authorities

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Legislation

  • Labour Institutions ActSections 3 and 12
  • Industrial Court (Procedure) Rules 2011Rules 16 and 27
  • Parliamentary Service (Constituency Officers) Regulations 2005General (set out terms of service of constituency staff and recruitment process)
Jurisdiction invoked
Rules 16 and 27 of the Industrial Court (Procedure) Rules 2011 and Sections 3 and 12 of the Labour Institutions 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, "Gilbert Atei Onsomu v Parliamentary Service Commission & another [2014] KEELRC 1193 (KLR)", Case Analysis (2014). Not stated in the judgment (Industrial Court cause number not indicated on the extracted pages). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1193/eng@2014-06-16

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