David Maina Gachanja v Esther Nyambura Gathogo & another [2019] KEELRC 2155 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 2nd Respondent was a necessary and proper party to the employment claim
The application to strike out the 2nd Respondent was dismissed and it was retained as a party
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.
Whether the striking-out application was premature
Yes; the application was dismissed as premature
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.
Legal principles established
#- 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
#- 1.The 2nd Respondent's Chamber Summons dated 29th May 2018 is dismissed
- 2.The Parliamentary Service Commission is retained as a party to the cause
- 3.Costs in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.