Time Abdallah & 21 others v Mombasa Maize Millers Limited & another [2017] KEELRC 1725 (KLR)
The bottom line
#Kenya's Employment Court ruled that outsourcing agreements don't automatically shift employees or start limitation clocks, so workers' claims against their original employer can proceed to full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the claims against the 1st Respondent were extinguished by the 3-year limitation period under Section 90 of the Employment Act 2007
The objection was declined because the date of accrual of any cause of action depends on contested facts, including who the employer was and when the employment relationship ended.
The Court held that the Outsourcing Agreement's date is contested and cannot serve as a definitive time indicator under Section 90. Fundamental questions - whether the employees were privy to the agreement, signed new contracts, or had prior contracts formally terminated - cannot be resolved preliminarily. The parties must marshal evidence, and removing the 1st Respondent would risk denying the Claimants a full and effective remedy.
The nature of the relationship between the two Respondents and the Claimants
The relationship is potentially triangular, involving two employers and an employee, following the Court's approach in Nyamavi Gambo v. Mombasa Maize Millers Limited and Another.
Following its earlier decision, the Court stated it apportioned liability between employers based on when each was in active control of the employees, without finding a principal-agent relationship. The same disentangling of rights and obligations is required here, which cannot be done merely by affidavit evidence on a preliminary objection.
Legal principles established
#- Where a triangular relationship involving two employers and an employee arises from a labour outsourcing arrangement, contested questions of who the employer was and when cannot be determined on a preliminary objection without evidence.
- Removing the purported principal employer from litigation at a preliminary stage may deny claimants a full and effective remedy.
Court orders
#- 1.The preliminary objection is declined
- 2.Parties to schedule the dispute for pre-trial directions under Rule 15 of the Court's Rules
- 3.Costs in the cause
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment claims; Rule 15 of the Court's Rules referenced for pre-trial directions
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Time Abdallah & 21 others v Mombasa Maize Millers Limited & another [2017] KEELRC 1725 (KLR)", Case Analysis (2017). Cause No 694 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1725/eng@2017-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.