Patrick Kiarie Kung’u v J.M. Ndoro t/a Baraka Farms [2019] KEELRC 1977 (KLR)
The bottom line
#A Kenyan employment court struck out a worker's entire claim because it was filed against the wrong party, and the worker was ordered to pay costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the respondent's preliminary objection on wrongful enjoinment is a pure point of law
Yes - who is properly sued as a respondent is a matter regulated in law and by the court's Rules, and the court must determine it at the earliest opportunity to ensure proper parties are before it
The court held that parties may raise preliminary objections on pure points of law at the earliest opportune moment. The identity of the party sued as respondent is regulated by Rule 13 of the ELRC (Procedure) Rules, 2016, which requires a respondent to file a response to the claim. Determining whether the correct party is before the court is therefore a proper preliminary point of law to be addressed early, before the suit proceeds to hearing on the merits.
Whether the claimant sued the wrong respondent
Yes - employment was with Baraka Farms, not with J.M. Ndoro t/a Baraka Farms in a capacity as heir/administrator/beneficiary of the estate of A.N. Njuguna Ndoro; the enjoinment is a misjoinder and the suit is fatally defective
The claimant's own pleading described the respondent as heir/Administrator/beneficiary to the estate of A.N. Njuguna Ndoro, yet the appointment letter and work records show employment by Baraka Farms. The statutory definition of 'employer' could not cure suing the wrong respondent. The objection under Rule 14(5) therefore succeeded, and the suit was struck out with costs to the respondent.
Whether Lucy Nyandia Mwangi v Mathenge & Muchemi Advocates & another [2015] eKLR applies
No - that case was premised on different, foundationally different facts, as limited letters of administration had been issued there and a proper party was in attendance
The claimant relied on the decision to argue that an employee should not be burdened with unmasking the employer. The court, reading that decision, distinguished it: there, limited letters of administration had been issued so a proper party was before the court, unlike here where the claimant sued a party in a capacity that did not match the actual employer.
Legal principles established
#- The proper respondent must be enjoined in proceedings so as to be able to respond to a claim under the ELRC Procedure Rules, and suing the wrong respondent is a fatal defect curable by striking out the suit
- A definition of 'employment' in the Employment Act cannot cure the misjoinder of a wrong respondent
Court orders
#- 1.The suit against the respondent as set out is fatally defective and is struck out
- 2.Costs to the respondent
- Jurisdiction invoked
- Employment and Labour Relations Court (Procedure) Rules, 2016 (preliminary objection under Rule 14(5))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Patrick Kiarie Kung’u v J.M. Ndoro t/a Baraka Farms [2019] KEELRC 1977 (KLR)", Case Analysis (2019). Not stated in the judgment (Employment and Labour Relations Court cause). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1977/eng@2019-01-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.