Adam Miller v WS Insight Limited [2018] KEELRC 813 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Suitability of the notice of preliminary objection
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
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.
Employee versus independent contractor as a preliminary point
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
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.
Alleged illegality of the contract (ex turpi causa)
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
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.
Legal principles established
#- 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
#- 1.The preliminary objection dated 2nd February 2018 is dismissed
- 2.Costs of the preliminary objection awarded to the claimant
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.