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ELRCDismissedCause No 84 of 2014· [2016] KEELRC 343 (KLR)

Erick Namisi Sifuma & 2 others v Guava Restaurant [2016] KEELRC 343 (KLR)

Employment and Labour Relations Court
28 October 2016
1,183 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employer who loses an employment case cannot raise a new legal capacity defence months later to dodge paying salary arrears.

What this practically means

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Executive summary

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This Employment and Labour Relations Court ruling at Nakuru, delivered by Radido Stephen, Judge, on 28 October 2016, determined a preliminary objection raised by the Respondent in execution proceedings arising from a judgment of 13 November 2015 in which the Court found the Respondent owed the Claimants unpaid salary arrears. After the Respondent failed to pay, the Claimants commenced execution through committal to civil jail of the Respondent's directors. A Notice to Show Cause was issued to Daniel and Jimmy Waweru; the Deputy Registrar struck out notices of appointment filed by two firms of advocates as irregular, struck out the first Notice to Show Cause as directed against non-parties, and directed extraction of a fresh notice against the Respondent. The Respondent then filed a preliminary objection contending it was not a legal entity capable of being sued, that execution could not issue against a non-existing entity, and that there was no valid judgment upon which execution could flow. The Court dismissed the objection. It held that the capacity defence was never raised in the Reply to the Memorandum of Claim or in testimony, that a party must disclose its full case in good time, and that the belated objection was an attempt to frustrate lay Claimants through procedural rigmarole. The Court, having heard the Cause on the merits and delivered judgment, was functus officio; the proper remedies were review, setting aside or appeal. The two authorities cited by the Respondent were distinguished as summons applications determined on common law, whereas this employment dispute is governed by the Employment Act, 2007, under which a manager, agent, foreman or factor is considered an employer. The objection was dismissed with costs to each of the Claimants.

Key legal issues

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01

Whether the Respondent's legal capacity to be sued could be raised for the first time after judgment

Holding

No; the defence was waived by failure to plead it or raise it in testimony, and the objection was an abuse aimed at frustrating lay Claimants

Reasoning

The Respondent filed a Reply to Memorandum of Claim and witness statements without raising capacity; its director testified and admitted employment of the Claimants. Counsel explained the omission as an error realised only after judgment. The Court held a party must disclose its full case in good time and that the belated realisation was an attempt to run rings round the Claimants and the Court.

p. 2
02

Whether the Court was functus officio after the November 2015 judgment

Holding

Yes; the proper remedies were review, setting aside or appeal, not a preliminary objection at execution stage

Reasoning

The Cause had been heard on the merits and judgment delivered in November 2015. The Court found the preliminary objection process unprecedented in the Court's practice, and noted the objection was not anchored on any procedural or substantive law. Execution objections by strangers to litigation should proceed by way of objection proceedings.

p. 3
03

Whether the authorities cited by the Respondent on legal capacity applied

Holding

They did not; both involved summons applications and ex parte judgments decided on common law, whereas this Cause is governed by the Employment Act, 2007

Reasoning

The Court distinguished the two cited cases because they concerned summons applications, one on an ex parte judgment, and were determined on common law principles. The present dispute is an employment matter principally governed by the Employment Act, whose section 2 extends the definition of employer to managers, agents, foremen and factors, protecting informal-sector employees who lack written contracts identifying the legal employer.

p. 3
04

Validity of the judgment under which execution was sought

Holding

The judgment was valid; both parties participated and led evidence, and the Respondent cannot attack it for failing to raise an available defence in time

Reasoning

Both parties participated in the proceedings and led evidence upon which the judgment was anchored. Had the capacity defence been raised in time, the pleadings could have been amended by the lay Claimants. The Court also observed that the first Notice to Show Cause against the directors did not appear irregular, as they were directors of the Respondent, though it was not called upon to determine the Deputy Registrar's action.

p. 3

Legal principles established

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  • A party must place and disclose its full case in good time; a defence not raised in pleadings or testimony cannot be raised belatedly after judgment
  • After judgment, the avenues available are review, setting aside or appeal; a preliminary objection at execution stage is procedurally unprecedented
  • Under section 2 of the Employment Act, 2007, a manager, agent, foreman or factor of an employer is considered an employer and may be proceeded against by an employee

Court orders

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  1. 1.The preliminary objection dated 2 April 2016 is dismissed with costs to each of the Claimants

Authorities

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Legislation

  • Employment Actsection 2
Jurisdiction invoked
Original employment and labour relations jurisdiction; the Cause is governed principally by 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, "Erick Namisi Sifuma & 2 others v Guava Restaurant [2016] KEELRC 343 (KLR)", Case Analysis (2016). Cause No 84 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/343/eng@2016-10-28

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