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ELRCDismissedNot stated in the judgment· [2018] KEELRC 813 (KLR)

Adam Miller v WS Insight Limited [2018] KEELRC 813 (KLR)

Employment and Labour Relations Court
26 October 2018
1,046 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Employment and Labour Relations Court at Nairobi, per Maureen Onyango, Judge, delivered a ruling on 26th October 2018 dismissing a notice of preliminary objection dated 2nd February 2018 by which the respondent sought dismissal of the claimant's claim. The respondent argued that the court lacked jurisdiction because the dispute did not arise between an employee and an employer, and that the claimant sought to enforce an illegal contract contrary to the maxim ex turpi causa oritur non actio. The court applied the Mukisa Biscuit test, observing that a preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the opposing party are correct. Since the respondent had filed no defence, it was presumed to admit the claimant's pleaded facts, including that he was engaged as CEO at a salary of Kshs 1.5 million per month and was dismissed unprocedurally. On those admitted facts, the court held it had jurisdiction and the first ground failed. The second ground, concerning whether the claimant was an employee or independent contractor and whether the contract was illegal, was held to be a mixed question of law and fact requiring evidence, and therefore unsuitable for determination as a preliminary objection, following Stanley Mungai Muchai v National Oil Corporation and Republic v Eldoret Water and Sanitation Company Limited. The court dismissed the preliminary objection with costs to the claimant, leaving the substantive claim to proceed to full hearing.

Key legal issues

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01

Suitability of the notice of preliminary objection

Holding

The objection was misplaced because the respondent, whose defence was not on record, was deemed to admit the claimant's pleaded facts, including that the claimant was an employee whose employment was terminated

Reasoning

Applying the Mukisa Biscuit test, a preliminary objection must be a pure point of law on assumed facts. By objecting before filing a defence, the respondent admitted the pleaded facts that the claimant was employed as CEO at a salary of Kshs 1.5 million per month and was dismissed unprocedurally. On those admitted facts the Employment and Labour Relations Court has jurisdiction and the first ground fails.

p. 1
02

Employee versus independent contractor as a preliminary point

Holding

The second ground, questioning whether the claimant was an employee or independent contractor, cannot be raised by way of preliminary objection as it is subject to evidence

Reasoning

Relying on Stanley Mungai Muchai v National Oil Corporation and Republic v Eldoret Water and Sanitation Company Limited, the court held that whether a contract of service exists is a mixed question of law and fact to be determined after hearing evidence, and only this court can make that determination. It therefore falls outside the purview of a preliminary objection.

p. 2
03

Alleged illegality of the contract (ex turpi causa)

Holding

The claim of enforcing an illegal contract was a matter that could not be determined on a preliminary objection as it is subject to evidence

Reasoning

The court grouped the second ground with the employee/independent contractor question, holding that issues requiring ascertainment of facts cannot be resolved on a demurrer. The objection therefore failed on this ground as well, with costs awarded to the claimant.

p. 2

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts must be ascertained or where judicial discretion is sought
  • Whether a relationship amounts to a contract of service or contract for service is largely an issue of fact to be determined at the hearing, not a preliminary point going to jurisdiction

Court orders

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  1. 1.The preliminary objection dated 2nd February 2018 is dismissed
  2. 2.Costs of the preliminary objection awarded to the claimant

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 50 and 232
  • Employment ActSections 41, 43 and 45 (No. 11 of 2007)

Cases cited (3)

  • MUKHISA BISCUIT MANUFACTURERS LIMITED -V- WEST END DISTRIBUTORS LIMITED
  • STANLEY MUNGAI MUCHAI -V- NATIONAL OIL CORPORATION
  • REPUBLIC -V- ELDORET WATER AND SANITATION COMPANY LIMITED EX-PARTE BOOKER ONYANGO AND 2 OTHERS
    (2007) eKLR
Jurisdiction invoked
Article 162(2) of the Constitution and the Employment and Labour Relations Court Act (implied); the judgment addresses the court's jurisdiction over employment disputes without expressly citing a founding provision

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, "Adam Miller v WS Insight Limited [2018] KEELRC 813 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/813/eng@2018-10-26

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