Adeyo Waga Samwel & 10 others v Western Steel Mills Ltd & 2 others [2018] KEELRC 2547 (KLR)
The bottom line
#Kenya's Employment Court ruled that who someone's real employer is cannot be decided without evidence, so the case against Western Steel Mills proceeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the existence of an employer/employee relationship can be determined on a preliminary objection
No - it is a matter of fact requiring evidence
The claimants pleaded they were employees of the respondents from 2015 to 2017, a fact denied by the respondents. The contracts, sub-contracts and the involvement of Afritop Enterprises Limited and NSSF records naming Vero Investments Limited as employer created factual intricacies that could only be resolved by calling evidence. Removing a party on objection would deny the court an essential party.
Whether the 1st respondent is a necessary party
Yes, as an essential and relevant party for the effectual determination of the claims
Applying the two tests for a necessary party - a right to relief against such a party and the impossibility of passing an effective decree in its absence - the 1st respondent for whose benefit the claimants' labour was offered could not be removed from the suit at the threshold.
The source and limits of the court's jurisdiction
Jurisdiction flows from the Constitution and legislation; the ELRC has exclusive jurisdiction under Article 162(2) and section 12 of the ELRC Act over employment and labour relations disputes
Relying on the Supreme Court in Samuel Kamau Macharia, the court noted jurisdiction cannot be arrogated or expanded by judicial craft. Section 12(1) and (2) of the ELRC Act confer jurisdiction over employment and labour relations disputes by or against employees and employers, including ancillary fundamental rights claims per Mugendi.
Legal principles established
#- Where parties have agreed to undertake specific duties as an independent contractor, the status changes as an independent contractor lacks the requisite characteristics of an employee as defined under section 2 of the Employment Act, 2007 and thus falls outside the court's jurisdiction under Article 162(2)
- A preliminary objection must be a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained
Court orders
#- 1.The preliminary objections filed by the 1st respondent and supported by the 2nd respondent are dismissed with costs in the cause
- 2.The 1st respondent has 14 days to file defence
- 3.Parties to take a mention date for taking hearing directions
- 4.The consolidated files to be separated according to the different 2nd respondents - Jokali Handling Services and Vero Investments Limited
- Jurisdiction invoked
- Article 162(2) of the Constitution, 2010 and section 12 of the Employment and Labour Relations Court Act, 2011
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adeyo Waga Samwel & 10 others v Western Steel Mills Ltd & 2 others [2018] KEELRC 2547 (KLR)", Case Analysis (2018). Consolidated Causes Nos. 192, 193, 194, 195, 225, 226, 227, 254(A), 324, 325, 326 & 327 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2547/eng@2018-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.