Johana Kipkosgei Kigen & 4 others v Keiyo Teachers Sacco Society Limited (Prime-Time Sacco Society Limited) [2018] KEELRC 2569 (KLR)
The bottom line
#Kenya's Employment Court ruled that employers cannot dodge redundancy claims by labelling workers independent contractors when the facts require evidence.
What this practically means
#Executive summary
#Key legal issues
#Whether the objection that the parties' relationship is employer-contractor is a proper preliminary objection
No. The respondent's own response admitted an employment relationship, and the facts surrounding the employment and its termination require evidence; therefore the objection goes outside a pure question of law.
The respondent admitted in its response filed on 29th November 2017 that it had employed the claimants and that their employment was terminated due to new regulatory requirements. Because the existence and termination of the employment relationship, and the circumstances of the transfer to a third party, must be interrogated through evidence, the objection raises disputed facts rather than a point of law capable of being determined with finality at a preliminary stage.
Whether the authorities relied on by the respondent apply
They are distinguishable; the cited contractor cases involve employers sourcing services from contractors, not employees declared redundant seeking statutory rights.
The court found the circumstances in Safari Joseph Ngala v Rapid Kate Service Ltd and George Kamau Ndiritu v Intercontinental Hotel fundamentally different, since those cases concern an employer obtaining services from a contractor within its business, whereas this case concerns employees declared redundant and claiming rights under section 40 of the Employment Act arising from an employment relationship.
Whether preliminary objections may be used as a delay tactic
No. Preliminary objections used as a delay tactic are contrary to the objective of expeditious hearing under the ELRC Act and Article 159 of the Constitution, and costs should follow.
Sections 3 and 29(1) of the Employment and Labour Relations Court Act, 2011 oblige the court to hear employer-employee disputes expeditiously; delay perpetuates injustice. Reliance on technicalities is contrary to Article 159 of the Constitution. Where objections are used contrary to set principles, the court should award costs against the objecting party.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot succeed where facts must be gone into by calling evidence
- Where employment existed and terminated under section 40 of the Employment Act, the resulting rights arise only in an employer-employee relationship and fall within the court's jurisdiction
- An employment relationship ended by redundancy under section 40 is fundamentally different from an employer sourcing services from an independent contractor
Court orders
#- 1.The respondent's preliminary objection dated 29th November 2017 is dismissed with costs to the claimant
- 2.Hearing directions to issue as both parties have exchanged their pleadings
- Jurisdiction invoked
- 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, "Johana Kipkosgei Kigen & 4 others v Keiyo Teachers Sacco Society Limited (Prime-Time Sacco Society Limited) [2018] KEELRC 2569 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/2569/eng@2018-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.