Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELRCPartially AllowedCause No 189 of 2015· [2015] KEELRC 1621 (KLR)

Imtiaz Khan v Five Forty Aviation Limited & 2 others [2015] KEELRC 1621 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
20 August 2015
HWHELLEN WASILWA
2,170 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

#

Kenya's Employment Court confirmed it can hear termination disputes even where an employer claims the relationship was commercial, but struck out claims against a company with no employment link to the worker.

What this practically means

#

Executive summary

#
This Industrial Court ruling determined five interlocutory applications arising from a claim of unlawful termination filed by the claimant against the 1st Respondent, with the 2nd Respondent also enjoined. The claimant sought priority hearing, an injunction restraining transfer of assets and voluntary winding up of the 1st Respondent, and an order that both Respondents jointly and severally deposit Kshs.12,323,027 as security for her claim and costs, contending the 1st Respondent had only seven leased aircraft, no attachable assets and was transferring assets to the 2nd Respondent to evade liabilities including a Kshs.101 million tax judgment. The Respondents opposed on jurisdiction, arguing the relationship was commercial rather than employment, and the 2nd Respondent sought to be struck out for want of privity. The court framed three issues: jurisdiction, propriety of the 2nd Respondent's joinder, and the orders sought. Applying Article 162(2) of the Constitution and Section 12 of the Industrial Court Act, Justice Hellen Wasilwa held that termination disputes fall within the court's jurisdiction regardless of commercial motive. The claim against the 2nd Respondent was struck out, no employment contract or cause of action being disclosed against it, with costs to the 2nd Respondent. The security and winding-up applications failed for want of evidential support, resting only on counsel's affidavit without annexures. The applications were dismissed; priority was referred to the Deputy Registrar and costs made in the course. Judgment was read in open court on 20th August 2015.

Key legal issues

#
01

Jurisdiction over the termination dispute

Holding

The court has jurisdiction as the claim relates to employment and termination

Reasoning

The court traced its jurisdiction to Article 162(2) of the Constitution and Section 12 of the Industrial Court Act, which confer exclusive jurisdiction over employment and labour relations disputes. Because the claimant's claim is that she was unlawfully terminated by the 1st Respondent, her employer, the dispute falls squarely within the court's jurisdiction notwithstanding the respondents' objection that the later contract was commercial.

p. 4
02

Joinder of the 2nd Respondent

Holding

The 2nd Respondent is wrongly enjoined; claim against it struck out

Reasoning

The court examined the statement of claim and found no employment contract or other relationship between the claimant and the 2nd Respondent, and no discernible manner in which the 2nd Respondent affects the claimant's rights. Allegations of asset transfer to the 2nd Respondent were unsupported by evidence. The claim against the 2nd Respondent was therefore struck out with costs.

p. 4
03

Security for the claim / restraint on winding up

Holding

Orders refused for lack of evidential support

Reasoning

The claimant sought security of Kshs.12,323,027 and restraint against winding up on the ground that the 1st Respondent had transferred assets to the 2nd Respondent. The only evidence came from counsel's affidavit without supporting annexures, while the respondents averred ability to meet any judgment. The application was found without merit and dismissed.

p. 5

Legal principles established

#
  • Jurisdiction is foundational; a court must establish jurisdiction before addressing any other issue
  • Termination disputes, whether for commercial reasons or otherwise, fall within the Industrial Court's jurisdiction

Court orders

#
  1. 1.Claim against the 2nd Respondent struck out with costs to the 2nd Respondent
  2. 2.Claimant's applications (including the application for security of Kshs.12,323,027) dismissed
  3. 3.Priority hearing to be considered by the Deputy Registrar according to the court's calendar
  4. 4.Costs in the cause

Authorities

#

Legislation

  • Constitution of KenyaArticle 162(2)
  • Industrial Court ActSection 12
  • Industrial Court Rules 2010Rule 16b(2)
Jurisdiction invoked
Article 162(2) of the Constitution and Section 12 of the Industrial Court Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Imtiaz Khan v Five Forty Aviation Limited & 2 others [2015] KEELRC 1621 (KLR)", Case Analysis (2015). Cause No 189 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2015/1621/eng@2015-08-20

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