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ELRCDismissedELRC Cause (number not stated; application dated 12th November, 2018)· [2019] KEELRC 2201 (KLR)

Jimnah Muchiri v Agricultural Society of Kenya [2019] KEELRC 2201 (KLR)

Employment and Labour Relations Court
13 February 2019
HWHellen Wasilwa
1,627 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 ruled that whether someone was an employee or volunteer needs evidence at trial, so the case proceeds.

What this practically means

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Executive summary

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The Respondent brought an application dated 12th November, 2018 under Section 90 of the Employment Act, Section 12 of the Employment and Labour Relations Court Act and Rule 17(1) of the ELRC (Procedure) Rules 2016, seeking striking out of the suit and costs. It argued that the Claimant was a volunteer, not an employee, so no employer-employee dispute existed capable of adjudication by the Court; and that the cause of action arose on 27th February, 2012 when the Claimant's advocate demanded terminal dues, so limitation under Section 90 expired on 26th February, 2015, rendering the suit filed on 30th June, 2017 time-barred. The application was supported by the affidavit of Dr. John Kennedy Omanga, retained by the Respondent as legal advisor. The Claimant filed grounds of opposition, contending that the existence of an employment relationship is a question of fact requiring evidence, and relied on the control, integration and economic reality tests cited in Christine Adot Lopeyio v Wydiffe Mwathi/tere, on his appointment letter imposing duties and control, and on dictionary definitions of salary and remuneration to argue that allowances paid over 30 years constituted wages. He also submitted that the applicable version of the Respondent's constitution is the one at the time of engagement. The Claimant made no submissions on limitation. The Court (Wasilwa J) held that both the nature of the relationship and the date of termination are triable issues of fact that cannot be resolved as a preliminary objection. The Court dismissed the preliminary objection, directed the main claim to proceed, and ordered costs in the cause.

Key legal issues

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01

Whether the nature of the relationship between the parties (employee vs volunteer) is a point of law

Holding

It is an issue of fact provable only through evidence and cannot be resolved via preliminary objection

Reasoning

The Respondent argued the Claimant was a volunteer not entitled to wages, so no employment dispute existed. The Claimant relied on tests of employment relationship (control, integration, economic reality) citing Christine Adot Lopeyio v Wydiffe Mwathi/tere and pointed to his appointment letter imposing duties and control, and to allowances received as remuneration. The Court found the relationship and the termination date both require evidence, so the preliminary objection fails.

p. 3
02

Whether the claim was filed out of time under Section 90 of the Employment Act

Holding

Not determined at this stage because the date of termination remains a triable issue

Reasoning

The Respondent contended the cause of action arose on 27th February, 2012 when a demand for terminal dues was made, so limitation expired on 26th February, 2015, making the 30th June, 2017 suit time-barred. The Court noted from the pleadings that the Claimant stated he never received a terminal letter, so the date of termination is disputed and must be established at trial. The Claimant submitted nothing on limitation, but the Court declined to strike out the suit.

p. 3

Legal principles established

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  • Whether an employer-employee relationship exists is a question of fact that cannot be determined on a preliminary objection without evidence
  • A disputed date of termination is a triable issue not amenable to preliminary objection

Court orders

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  1. 1.The Preliminary Objection/application dated 12th November, 2018 is dismissed
  2. 2.The main claim to proceed
  3. 3.Costs in the cause

Authorities

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Legislation

  • Employment ActSection 90
  • Employment ActSection 2
  • Employment and Labour Relations Court ActSection 12
  • Employment and Labour Relations Court (Procedure) Rules 2016Rule 17(1)

Cases cited (1)

  • Christine Adot Lopeyio v Wydiffe Mwathi/tere
    NRB ELRC Cause No. 1688 of 2012 [2013] eKLR
Jurisdiction invoked
Section 90 of the Employment Act; Section 12 of the Employment and Labour Relations Court Act; Rule 17(1) of the Employment and Labour Relations Court (Procedure) Rules 2016

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, "Jimnah Muchiri v Agricultural Society of Kenya [2019] KEELRC 2201 (KLR)", Case Analysis (2019). ELRC Cause (number not stated; application dated 12th November, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/2201/eng@2019-02-13

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