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ELRCPartially AllowedNotice of Motion dated 3rd July, 2019 in the main suit· [2019] KEELRC 1050 (KLR)

NRG Media Limited v Andrew Kibe Mburu & another; Radio Africa Limited (Proposed Interested Party) [2019] KEELRC 1050 (KLR)

Employment and Labour Relations Court
15 July 2019
HWHellen Wasilwa
1,900 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court allowed Radio Africa to join an employment case as an interested party because an employer-employee relationship already existed between the parties.

What this practically means

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Executive summary

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Radio Africa Limited, a media conglomerate operating six radio stations, applied by Notice of Motion dated 3rd July 2019 to be enjoined as an interested party in an employment suit and to set aside injunction orders issued on 28th June 2019 barring the respondent from performing services for any competing radio station. The application was supported by the affidavit of Linda Musita, Head of Legal, who deponed that Radio Africa had employed the respondent under a contract signed on 14th June 2019, and that the injunction threatened substantial investment, promotional campaigns and advertising revenue, and that the proposed interested party had not been heard when the orders were issued. The Claimant/Respondent opposed the application through a Replying Affidavit of Auma Okelo and a Preliminary Objection dated 5th July 2019, arguing that the application was defective and commercial in nature, outside the court's jurisdiction under Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act, and that the non-compete clause was admitted by all parties. The Claimant contended the respondents had resigned on 11th June 2019, three months' payment in lieu of notice having been given, and were unjustly enriching themselves by earning from two employers. The court held that since an employer-employee relationship already existed between the proposed interested party and the respondents before the claim was filed, the matter fell within the purview of Section 12 of the Employment Act, and allowed the joinder. It also dismissed the preliminary objection as premised on the erroneous view that no employment relationship existed. Costs were awarded in the cause. The application to set aside the 28th June 2019 orders was not granted in express terms.

Key legal issues

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01

Joinder of an interested party in an employment dispute

Holding

The application for joinder was allowed because an employer-employee relationship existed between the proposed interested party and the respondent

Reasoning

The court noted the proposed interested party had signed an employment contract with the respondent before the claim was filed, establishing an employer-employee relationship. On that basis the dispute fell within the purview of Section 12 of the Employment Act, justifying enjoining the applicant as an interested party.

p. 3
02

Preliminary objection on jurisdiction

Holding

Dismissed, as it rested on the false premise that the proposed interested party had no employment relationship with any party

Reasoning

The preliminary objection contended the application offended Article 162(2)(a) and Section 12 of the ELRC Act because the dispute was commercial. The court rejected this, finding the objection was premised on there being no employment relationship between the proposed interested party and any party, which the court had already found existed.

p. 3

Legal principles established

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  • Where an employment relationship already exists between the proposed interested party and a respondent, the dispute falls within the court's jurisdiction under Section 12

Court orders

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  1. 1.The Proposed Interested Party (Radio Africa Limited) is allowed to be enjoined in the suit as an interested party
  2. 2.The Preliminary Objection dated 5th July 2019 is dismissed
  3. 3.Costs of the applications are in the cause

Authorities

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Legislation

  • Employment and Labour Relations Court ActSection 12(1), (3), (4)
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Employment ActSection 12
Jurisdiction invoked
Article 162(2)(a) of the Constitution and Section 12 of the Employment and Labour Relations Court Act

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, "NRG Media Limited v Andrew Kibe Mburu & another; Radio Africa Limited (Proposed Interested Party) [2019] KEELRC 1050 (KLR)", Case Analysis (2019). Notice of Motion dated 3rd July, 2019 in the main suit. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1050/eng@2019-07-15

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