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ELRCDismissedCause No 900 of 2017· [2019] KEELRC 858 (KLR)

Carolyne Mboku v Stephen Njoroge Gikera & 2 others (All t/a Gikera & Vadgama Advocates) [2019] KEELRC 858 (KLR)

Employment and Labour Relations Court
26 September 2019
LNLINNET NDOLO
687 words in judgment
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The bottom line

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Kenya's Employment Court confirmed that a manager who signs a termination letter can be personally sued as an employer, even if not on the firm's registration certificate.

What this practically means

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Executive summary

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The Employment and Labour Relations Court at Mombasa (Linnet Ndolo, Judge) ruled on the 3rd Respondent Emma Ochieng's Notice of Motion dated 6th March 2019 seeking her removal from the employment claim. She argued she was a salaried employee and not an equity partner in Gikera & Vadgama Advocates, that her name did not appear on the firm's certificate of registration, and that she was not liable for the firm's acts or omissions and thus not a proper party. The Claimant, by replying affidavit sworn 18th March 2019, deponed that she was employed as an advocate in July 2015, that the 3rd Respondent was her immediate boss as head of the Mombasa office, and that on 12th May 2017 the 3rd Respondent was announced as a partner at an office cocktail. Framing the single issue as whether the 3rd Respondent was properly sued, the court held that absence from the registration certificate did not exclude post-registration admission to partnership. The 3rd Respondent did not contest that she headed the Mombasa office and was the Claimant's immediate boss, and she had signed the termination letter, which the court held was inconsistent with a mere salaried employee. Relying on the definition of employer in Section 2 of the Employment Act, 2007, the court found the 3rd Respondent a necessary party and disallowed the application with costs in the cause on 26th September 2019.

Key legal issues

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01

Whether a salaried employee of a law firm who did not appear on the certificate of registration could be sued in an employment claim

Holding

The 3rd Respondent was properly sued as a necessary party given her role in the termination

Reasoning

Although her name was absent from the registration certificate, that did not exclude post-registration admission to partnership. She did not dispute being partner in charge of the Mombasa office and the Claimant's immediate boss. She signed the termination letter, an act inconsistent with being a mere salaried employee. The Employment Act definition of employer includes agents, foremen, managers and factors, capturing her role.

p. 2

Legal principles established

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  • An agent, foreman, manager or factor of an employer falls within the statutory definition of employer and may be sued

Court orders

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  1. 1.The application dated 6th March 2019 is disallowed with costs in the cause

Authorities

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Legislation

  • Employment Act, 2007Section 2
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (Employment Act, 2007 invoked)

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, "Carolyne Mboku v Stephen Njoroge Gikera & 2 others (All t/a Gikera & Vadgama Advocates) [2019] KEELRC 858 (KLR)", Case Analysis (2019). Cause No 900 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/858/eng@2019-09-26

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