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ELRCOtherNot stated in the judgment extract· [2017] KEELRC 1757 (KLR)

Julius Charo Kazungu v Mombasa Maize Millers Limited & Ready Consultancy Limited (Cause 669 of 2016) [2017] KEELRC 1757 (KLR)

Employment and Labour Relations Court
20 February 2017
JRJames Rika
691 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court refused to dismiss a claim against an employer, ruling that disputed facts about who employed a worker must be resolved at trial.

What this practically means

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Executive summary

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The 1st Respondent raised a preliminary objection dated 27th October 2016 seeking to have the Claimant's Memorandum of Claim, filed 14th July 2016, struck out as defective, an abuse of process, and barred by the three-year limitation period in Section 90 of the Employment Act 2007. The Claimant, employed as a Loader from July 2008, alleged unfair oral dismissal by the 1st Respondent on 11th April 2015 and sought notice pay, service pay, annual leave pay, a certificate of service, a declaration of permanent employment, and costs. The 1st Respondent argued that its relationship with the Claimant ended when it outsourced its labour force to the 2nd Respondent under an Outsourcing Agreement concluded on 1st January 2012, so any claim against it accrued more than three years before filing. The Court, applying its earlier decision in Nyamavi Gambo v. Mombasa Maize Millers Limited and Another [2016] e-KLR, characterized the arrangement as a triangular relationship of two employers and an employee rather than principal-agent. It found that critical factual questions - whether the Claimant was privy to the Outsourcing Agreement, signed a new contract, whether his prior contract was formally terminated with terminal benefits paid, and whether supervisory control changed - could not be determined preliminarily on affidavit evidence. The 2nd Respondent disputed the 1st Respondent's position on the Agreement. The Court declined the objection, ordered the parties to schedule pre-trial directions under Rule 15 of the Court's Rules, and awarded costs in the cause.

Key legal issues

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Whether Section 90 of the Employment Act barred the Claim against the 1st Respondent as filed more than three years after the alleged Outsourcing Agreement

Holding

The objection failed; the Outsourcing Agreement could not serve as a definitive time indicator for limitation purposes where its date and effect were contested

Reasoning

The Court held that whether the Claimant's employment transferred to the 2nd Respondent involved disputed facts: whether the Employee was privy to the Outsourcing Agreement, signed a new contract, had his prior contract formally terminated with benefits paid, and whether supervisory control changed. These questions could not be resolved by affidavit evidence and required trial. Removing the 1st Respondent would deprive the Claimant of a full remedy.

p. 2

Legal principles established

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  • Contested and unresolved factual questions, such as the identity of the employer in an outsourced labour arrangement, cannot be resolved on a preliminary objection; the parties must be given the opportunity to marshal evidence at trial.
  • Where labour is outsourced, a triangular relationship involving two employers and an employee may arise, and liability should be apportioned based on when each employer was in active control of the employee.

Court orders

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  1. 1.The preliminary objection is declined
  2. 2.Parties to schedule the dispute for pre-trial directions under Rule 15 of the Court's Rules
  3. 3.Costs in the cause

Authorities

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Legislation

  • Employment ActSection 90

Cases cited (1)

  • Nyamavi Gambo v. Mombasa Maize Millers Limited and Another
    [2016] e-KLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act 2007 and the Court's Rules (Rule 15 referenced); no constitutional provision cited

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, "Julius Charo Kazungu v Mombasa Maize Millers Limited & Ready Consultancy Limited (Cause 669 of 2016) [2017] KEELRC 1757 (KLR)", Case Analysis (2017). Not stated in the judgment extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1757/eng@2017-02-20

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