Peter Gordon Horsey & another v Civicon Limited [2019] KEELRC 656 (KLR)
The bottom line
#The Employment Court refused to throw out two workers' claims, ruling that questions about who actually employed them must be decided at a full trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the claims against Civicon Limited should be struck out on the ground that it was not the employer named in the employment contracts
The applications were not merited; the P9 forms, resignation letters and responses from Civicon Limited's officials created a triable issue as to whether Civicon Limited was the claimants' employer
The court observed that although the employment contracts named Civicon Africa Group Limited and Civicon Kenya Limited, the income tax deduction cards and resignation correspondence referenced Civicon Limited, and officials describing themselves as Civicon Limited's Board Chairman and Acting CEO accepted the resignations and swore the supporting affidavits. Whether the entities are distinct is a matter for full trial, not summary striking out.
The legal principles governing striking out pleadings
Striking out is a drastic, discretionary remedy of last resort, to be exercised sparingly and only in plain cases where the pleading is incurable by amendment, per Order 2 Rule 15 of the Civil Procedure Rules
The court adopted the summary of the law in Kivanga Estates Limited v National Bank of Kenya Limited and Co-operative Merchant Bank Ltd v George Fredrick Wekesa, emphasizing the right to a full trial, the balancing of rival considerations, and that the word 'may' in Order 2 rule 15 signals a sparing exercise of the power.
Legal principles established
#- Striking out of pleadings is a drastic remedy to be resorted to sparingly, only where a pleading discloses no semblance of a cause of action and cannot be cured by amendment
Court orders
#- 1.The two applications to strike out the Statements of Claim are dismissed
- 2.Costs of the applications awarded to the claimants
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act (not expressly quoted in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Gordon Horsey & another v Civicon Limited [2019] KEELRC 656 (KLR)", Case Analysis (2019). Cause 785 of 2018 and Cause 811 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/656/eng@2019-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.