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ELRCDismissedELRC Cause No. 52 of 2018 (lead file), consolidated with ELRC Cause No. 51 of 2018 and ELRC Cause No. 53 of 2018· [2019] KEELRC 482 (KLR)

Susan Wambui Macharia & 2 others v Kiganjo Health Centre [2019] KEELRC 482 (KLR)

Employment and Labour Relations Court
30 October 2019
NMNzioki wa Makau
1,839 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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Three former health workers lost their case because they sued Kiganjo Health Center, which legally does not exist, instead of Nyeri County Government.

What this practically means

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Executive summary

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Three consolidated causes (ELRC Cause No. 52 of 2018 as lead file, with Nos. 51 and 53 of 2018) were brought by former employees of Kiganjo Health Center claiming unfair, unprocedural and unlawful termination of their services on 30th September 2017 by the Respondent's chairman, Mr. Karuri Ndeng'era, allegedly without notice to show cause or a hearing. Each Claimant sought compensation for loss of income, one month's salary in lieu of notice, salary arrears, unpaid leave, unpaid public holidays, outstanding NSSF dues and salary underpayment. The Respondent denied being a legal persona with capacity to sue or be sued, denied employing the Claimants, and asserted that they were casual labourers on three-month renewable contracts whose last contracts simply expired and were not renewed. Two Claimants testified, as did a clinical officer called by the Respondent, who confirmed the three-month renewable contract arrangement and that the Respondent falls under the Ministry of Health and is not a registered company or trustee. The court held that Kiganjo Health Center is not an incorporated entity or duly registered, and that the contracts exhibited were from the County Government of Nyeri, the entity the Claimants ought to have sued. The suits were dismissed as being against a party without privity of contract with the Claimants. Each party was ordered to bear its own costs.

Key legal issues

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01

Capacity of the Respondent to be sued

Holding

The Respondent is not an incorporated entity or registered trustee and has no capacity to sue or be sued; the proper defendant is the County Government of Nyeri

Reasoning

The court found that Kiganjo Health Center is not incorporated or registered. Although the Claimants' witness testified that the Respondent paid their salaries per bank statements, the contracts exhibited were from the County Government of Nyeri, the entity in privity of contract with the Claimants. Suing a party without legal persona rendered the suits fatally defective.

p. 2
02

Status of the Claimants' employment and the alleged unfair termination

Holding

The Claimants were on fixed term contracts that lapsed by effluxion of time; the court did not reach the unfair termination question because the suits failed on capacity and privity

Reasoning

The evidence established that the Claimants signed three-month renewable contracts and the last contracts were not renewed. The court framed the dispute around the fixed term contracts and casual labour issue raised in submissions, but disposed of the suits on the threshold issue of the Respondent's lack of legal persona and absence of privity of contract.

p. 2

Legal principles established

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  • A suit must be instituted against a party with legal capacity and privity of contract with the claimant; a suit against a non-legal persona is devoid of merit

Court orders

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  1. 1.The suits against the Respondent are dismissed as the Respondent had no privity of contract with the Claimants
  2. 2.Each party will bear their own costs

Authorities

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Legislation

  • Employment ActSection 35(1)(c)
  • Employment ActSection 37(1)
  • Employment ActSection 49(1)(c)
  • Companies Actnull

Cases cited (2)

  • Isaiah Makhoha v Basco Products (K) Ltd
    [2014] eKLR
  • Justus Miwani v Jiangxi Water & Hydro Power Construction Kenya
    [2018] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (court declined jurisdiction over the claims as framed, the Respondent not being a legal persona)

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, "Susan Wambui Macharia & 2 others v Kiganjo Health Centre [2019] KEELRC 482 (KLR)", Case Analysis (2019). ELRC Cause No. 52 of 2018 (lead file), consolidated with ELRC Cause No. 51 of 2018 and ELRC Cause No. 53 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/482/eng@2019-10-30

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