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ELRCDismissedCause before the Employment and Labour Relations Court, Memorandum of Claim dated 18th January 2017 (number not stated in judgment)· [2018] KEELRC 2405 (KLR)

Edward Lwangu Mamboleo v Tristar Transport Limited [2018] KEELRC 2405 (KLR)

Employment and Labour Relations Court
13 February 2018
HWHellen Wasilwa
1,053 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to throw out a worker's claim because the employer's jurisdiction challenge depended on disputed facts needing a full hearing.

What this practically means

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Executive summary

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The Respondents, described as Tristar Transport LLC, filed a Preliminary Objection and Notice of Motion dated 20th June 2017 seeking to strike out the Claimant's Memorandum of Claim dated 18th January 2017 on grounds that it was scandalous, frivolous and vexatious, and alternatively that the Court lacked jurisdiction over the suit, with a stay of further proceedings sought pending the outcome. The application, supported by affidavits of the Respondent's Human Resource Manager, Vilayannur Ramamoorthy Subramanian, asserted that the Claimant had resigned on 22nd October 2014, was not an employee of the Kenyan Respondent, had been engaged by Tristar Limited Liability Company incorporated in the UAE under a contract governed by Central African Republic law, and that no agreement existed between the Claimant and the Respondent. The Claimant opposed the application through a replying affidavit sworn 17th July 2017, maintaining that his departure was a reassignment rather than a resignation, arranged by the Respondent's staff, with salary payable until December 2014, and that his employment grievances were handled by Tristar Transport Limited in Kenya. Lady Justice Hellen Wasilwa applied the classic Mukisa Biscuits definition of a preliminary objection as a pure point of law. She found that disputed issues of evidence, including the real identity of the Respondent and whether it continued paying the Claimant's salary after his departure, could not be resolved without going into the merits. She dismissed the Preliminary Objection, directed the claim to proceed for hearing, and awarded costs in the cause.

Key legal issues

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01

Whether the Preliminary Oblication challenging jurisdiction could be determined on points of law alone

Holding

The objection could not succeed because it depended on disputed facts requiring a full hearing

Reasoning

Applying Mukisa Biscuits Company vs Westend Distributors Limited, the court held that a preliminary objection must be a pure point of law. In this matter, the court would need to resolve evidential questions including the real identity of the Respondent and whether the Respondent continued paying the Claimant's salary after he left, pointing to continuity of service. Such factual inquiry is incompatible with the nature of a preliminary objection, so the objection was dismissed.

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

Court orders

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  1. 1.The Preliminary Objection is dismissed
  2. 2.The claim proceeds for hearing
  3. 3.Costs in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12 rules (3) and (4)
  • Employment and Labour Relations Court (Rules)Order 17 rules (1) and (8)

Cases cited (1)

  • Mukisa Biscuits Company vs Westend Distributors Limited
    1969 EA 696
Jurisdiction invoked
Section 12 rules (3) and (4) of the Employment and Labour Relations Court Act 2014 and Order 17 rules (1) and (8) of the Employment and Labour Relations Court (Rules), 2016 (invoked by the Applicants in support of the application)

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, "Edward Lwangu Mamboleo v Tristar Transport Limited [2018] KEELRC 2405 (KLR)", Case Analysis (2018). Cause before the Employment and Labour Relations Court, Memorandum of Claim dated 18th January 2017 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2405/eng@2018-02-13

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