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ELRCPartially AllowedNot stated in judgment· [2015] KEELRC 1207 (KLR)
Susan Mumbua & 6 others v Navitas Limited & 2 others [2015] KEELRC 1207 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The 1st and 2nd Respondents raised a preliminary objection seeking to strike out the Claimants' employment claims, contending that the 2nd Respondent (a college run by the 3rd Respondent) is not a legal entity capable of being sued, and that the 1st Respondent, an Australian company and shareholder of the 3rd Respondent, cannot be liable for the 3rd Respondent's obligations for want of privity of contract. Counsel for the Respondents relied on the separate legal personality doctrine under Section 16 of the Companies Act and authorities including Maurice Ooko Otieno v Mater Misericordiae Hospital and Priority Development Co. Ltd v Cianda Development Holdings. Claimants' counsel invoked Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors and TAWU v Kenya Bus Services Ltd, arguing that the letters of appointment, payslips and termination letters implicated different Respondents, justifying joinder of all three. The Court applied the Mukisa Biscuit test and held that no proper preliminary objection had been taken, since the issues arose from counsel's submissions and not from the pleadings; the objection therefore did not lie. Noting that the application before it was unopposed and that the Respondents did not deny an intention to leave the jurisdiction, the Court ordered the Respondents to deposit Kshs. 75,026,220.50 or furnish a bond from a reputable international bank within 7 days, with parties at liberty to apply. The claim itself was not determined at this stage.
Key legal issues
#01
What constitutes a proper preliminary objection
Holding
An objection founded on facts to be ascertained or arising only from counsel's submissions is not a proper preliminary objection
Reasoning
The Court adopted the Mukisa Biscuit formulations of Law J.A. and Sir Charles Newbold P. It found that the Respondents' objection rested on matters emerging from submissions rather than pleadings, and therefore failed the threshold of a pure point of law capable of disposing of the suit at the interlocutory stage.
p. 3
Legal principles established
#- A preliminary objection must be a pure point of law arising from the pleadings, argued on the assumption that all facts pleaded by the other side are correct
Court orders
#- 1.The preliminary objection taken by the 1st and 2nd Respondents does not lie and is not upheld as a proper preliminary objection
- 2.The Respondents to deposit a sum of Kshs. 75,026,220.50 or a bond of Kshs. 75,026,220.50 from a reputable international bank within 7 days
- 3.The parties are at liberty to apply
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction (not specifically invoked in the excerpt)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Mumbua & 6 others v Navitas Limited & 2 others [2015] KEELRC 1207 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1207/eng@2015-03-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.