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ELRCDismissedNot stated in the judgment· [2017] KEELRC 1808 (KLR)

Abdulkadir Kader Mamdani v Ahmed Salyani & Mohammed Ebrahim t/a Ace Associates [2017] KEELRC 1808 (KLR)

Employment and Labour Relations Court
10 February 2017
JRJames Rika
505 words in judgment
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The bottom line

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Kenya's Employment Court ruled that mixed employment-commercial disputes must proceed to full hearing rather than being struck out early for lack of jurisdiction.

What this practically means

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Executive summary

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The Claimant raised a preliminary objection against the Respondents' Counter-Claim, which alleged that the Claimant sold a faulty laptop to the Respondents' firm and caused losses of revenue and clientele goodwill, seeking general damages, costs and interest. The Claimant argued that although he was an employee at the time of the sale, the transaction was one between seller and buyer of goods regulated by the Sale of Goods Act, and that the Employment and Labour Relations Court's jurisdiction is confined to employment and labour disputes, citing the Court of Appeal decision in Karisa Chengo & 2 Others v. Republic. The Respondents filed Grounds of Opposition, contending the court has jurisdiction under Section 87(1)(b) of the Employment Act 2007 and that the objection was not a pure point of law, relying on Mukhisa Biscuit Manufacturers Limited v. West End Distributors Limited. The parties agreed the objection be determined on written submissions. The court found that the parties had an employment relationship terminated on 31st August 2015, but also a partnership arrangement under which the Claimant was to become a partner and make a refundable cash contribution, and that the employee was also engaged in selling merchandise to the employer. The relationship thus went beyond mere employment, and the dispute revolved around partnership, commercial and employment law. It was improper to sever one claim at a preliminary stage and decline jurisdiction; parties had to give evidence showing how peripheral claims relate to employment. The preliminary objection was held premature, declined, and the parties were directed to schedule the claim for full hearing. Judgment delivered at Mombasa on 10th February 2017 by James Rika, Judge.

Key legal issues

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01

Whether the Employment and Labour Relations Court has jurisdiction over a commercial counter-claim against an employee

Holding

The preliminary objection was premature and was declined; the dispute involves employment, partnership and commercial elements that must be tested at full hearing.

Reasoning

The parties were in an employment relationship which had ended with termination on 31st August 2015. Beyond employment, the claimant was engaged in selling merchandise to the employer and had a partnership agreement with a refundable cash contribution. The relationship therefore went beyond mere employment, and the dispute revolves around partnership, commercial and employment law. It would be improper to sever one claim at a preliminary stage and decline jurisdiction without evidence showing how the peripheral claims relate to employment.

p. 2
02

Whether the objection is a pure point of law

Holding

The Respondents argued the objection is not a pure point of law, relying on Mukhisa Biscuit Manufacturers v. West End Distributors; the court accepted the parties' agreement to dispose of the objection on written submissions but found the objection premature.

Reasoning

The Respondents filed Grounds of Opposition dated 23rd September 2016, contending the court has jurisdiction under Section 87(1)(b) of the Employment Act 2007 and that the objection is not a pure point of law, citing Mukhisa Biscuit Manufacturers Limited v. West End Distributors Limited [1969]. The parties agreed the objection be determined on written submissions filed on 21st November 2016.

p. 1

Legal principles established

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  • Where peripheral claims are intertwined with an employment relationship, the court should not sever a claim at a preliminary stage and decline jurisdiction; parties must be allowed to give evidence to show the linkage between the peripheral claims and employment.

Court orders

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  1. 1.The preliminary objection is declined
  2. 2.Parties directed to schedule the Claim for full hearing

Authorities

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Legislation

  • Employment ActSection 87(1)(b)
  • Sale of Goods ActNot specified

Cases cited (2)

  • Karisa Chengo & 2 Others v. Republic
    [2015] e-KLR
  • Mukhisa Biscuit Manufacturers Limited v. West End Distributors Limited
    [1969]
Jurisdiction invoked
Jurisdiction of the Employment and Labour Relations Court under Section 87(1)(b) of the Employment Act 2007 (as invoked by the Respondents)

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, "Abdulkadir Kader Mamdani v Ahmed Salyani & Mohammed Ebrahim t/a Ace Associates [2017] KEELRC 1808 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1808/eng@2017-02-10

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