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ELRCDismissedNot stated in judgment (ELRC cause; Chamber Summons dated 29th May 2018)· [2019] KEELRC 2155 (KLR)

David Maina Gachanja v Esther Nyambura Gathogo & another [2019] KEELRC 2155 (KLR)

Employment and Labour Relations Court
21 February 2019
1,597 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to remove the Parliamentary Service Commission from a staff unfair dismissal case, ruling that who actually employed the worker must be decided by evidence, not paperwork.

What this practically means

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Executive summary

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The Parliamentary Service Commission (2nd Respondent) filed a Chamber Summons dated 29th May 2018 under Order 1 Rules 2, 3, 10(2) and 14 and Order 2 Rule 15 of the Civil Procedure Rules, seeking a declaration that it had been improperly joined in a Statement of Claim by a Claimant alleging employment as Assistant Personal Assistant and Office Manager, Ruiru Constituency, plus an order striking out its name and costs. The 2nd Respondent argued there was no privity of contract between it and the Claimant: its role was limited to holding and disbursing funds to Members of Parliament to pay constituency staff, relying on Regulations 13, 22 and 23 of the Parliamentary Service (Constituency Offices) Regulations 2005 and Article 127 of the Constitution, and citing authorities on privity including Price v. Easton and Parliamentary Service Commission v. George Okoth Owuor. The Claimant opposed, contending the application was premature since pleadings had not been amended, that the 1st Respondent denied employing him, and that the 2nd Respondent was a necessary party, citing Savings and Loans (Kenya) Limited v. Kinyenje Karangata Gakombe on the sparing exercise of the striking-out jurisdiction. Lady Justice Hellen Wasilwa held it was premature to determine who the Claimant's employer was; that was a matter for evidence at the main hearing. The application was dismissed and the 2nd Respondent retained in the cause, with costs in the cause.

Key legal issues

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01

Whether the 2nd Respondent was a necessary and proper party to the employment claim

Holding

The application to strike out the 2nd Respondent was dismissed and it was retained as a party

Reasoning

The court noted that the Claimant's appointment letter was signed by the 1st Respondent but referred to conditions under Legal Notice No. 77 of 2000 and the Parliamentary Service Regulations 2005, suggesting the Claimant's employment was governed by both Respondents and the Parliamentary Service Regulations. Since the 1st Respondent denied the employment relationship, the question of who actually employed the Claimant, and the 2nd Respondent's potential liability for dues, could only be resolved on evidence at the main hearing, not at an interlocutory stage.

p. 3
02

Whether the striking-out application was premature

Holding

Yes; the application was dismissed as premature

Reasoning

The court held it was premature to deduce whether the 2nd Respondent was the Claimant's employer at the interlocutory stage. This aligns with the principle drawn from Savings and Loans (Kenya) Limited v. Kinyenje Karangata Gakombe & Another, relied on by the Claimant, that the power to strike out a claim for disclosing no cause of action must be exercised sparingly, only in plain and obvious cases, and must not be used to avoid trial except in the clearest of cases.

p. 3

Legal principles established

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  • Whether a party was the employer of a claimant is a matter to be established by evidence at the hearing and cannot be resolved on a striking-out application

Court orders

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  1. 1.The 2nd Respondent's Chamber Summons dated 29th May 2018 is dismissed
  2. 2.The Parliamentary Service Commission is retained as a party to the cause
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rules 2, 3, 10(2), 14 and Order 2 Rules 15(1)(a), (b), (c), (d) and 15(3)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of KenyaArticle 127
  • Parliamentary Service (Constituency Offices) Regulations 2005Regulations 13, 22 and 23; Section 2
  • Legal Notice No. 77 of 2000referenced in appointment letter
  • Parliamentary Service Regulations 2005 (as Amended)referenced in appointment letter

Cases cited (9)

  • Price vs. Easton
    [1833] 4 B & Ad 433, [1833] Eng R 334, [1833] 110 ER 518
  • Kenya Kazi Limited vs. Nahid Moosa Umar & Another
    [2006] eKLR
  • Parliamentary Service Commission vs. George Okoth Owuor & 2 Others
    Mombasa Civil Appeal 59 of 2014
  • Andrew Tubei Mulati vs. Hon. Enock Kibungunchy and the Parliamentary Service Commission
    Kisumu ELRC No. 320 of 2014
  • Ford vs. Beech
    [1848] 11 QB 852 at 866
  • Savings and Loans Kenya Limited vs. Mayfair Holdings Limited
    CA No. 152 of 2006
  • National Bank of Kenya Limited vs. Pipeplastic Samkolit (Kenya) Limited & Another
    [2001] KLR 112
  • City Council of Nairobi vs. Wilfred Kamau Githua T/A Githua & Associates & Another
    [2016] eKLR
  • Savings and Loans (Kenya) Limited vs. Kinyenje Karangata Gakombe & Another
    [2015] eKLR
Jurisdiction invoked
First-instance employment and labour relations jurisdiction (ELRC); application brought under Order 1 Rules 2, 3, 10(2) and 14, Order 2 Rule 15(1)(a)-(d) and 15(3) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure 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, "David Maina Gachanja v Esther Nyambura Gathogo & another [2019] KEELRC 2155 (KLR)", Case Analysis (2019). Not stated in judgment (ELRC cause; Chamber Summons dated 29th May 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2155/eng@2019-02-21

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