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ELRCPartially AllowedNot stated in the extract· [2020] KEELRC 152 (KLR)

Benard Ochieng Oduor v Trade Winds Aviation Services Limited & another [2020] KEELRC 152 (KLR)

Employment and Labour Relations Court
4 December 2020
1,526 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The 2nd Respondent filed a preliminary objection dated 6th July 2020 seeking its removal from the suit on the grounds that no cause of action or employment relationship existed between the Claimant and it, and that it was not a necessary party. The Claimant opposed, asserting that the 1st Respondent terminated him because the 2nd Respondent, to whom his services had been outsourced and which was the complainant in a criminal case against him, blacklisted him from the ramp and declined to take him back. The objection was disposed of by written submissions, the 1st Respondent not opposing. The 2nd Respondent argued that duties under the Employment Act fall on the employer only, and that section 43 requires the employer to justify termination. The court applied the Mukisa Biscuits test of a pure point of law and found the contract of employment was between the Claimant and the 1st Respondent, who paid his salary and terminated his services; working at the 2nd Respondent's premises under outsourced services did not create an employment relationship. Following the Court of Appeal's decision in Abyssinia Iron & Steel Limited v Kenya Engineering Workers Union, the court held that outsourced employees remain under the control of their direct employer. The preliminary objection was allowed and the 2nd Respondent removed from the proceedings, with the case to proceed against the 1st Respondent only. The judgment was delivered virtually at Nairobi on 4th December 2020 under COVID-19 directions. No costs order is recorded in the extract.

Key legal issues

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01

Whether the 2nd Respondent, to whom the Claimant's services were outsourced, could be liable for his termination by the 1st Respondent

Holding

The employment relationship existed only with the 1st Respondent; the 2nd Respondent is not a necessary party and no claim for termination can stand against it

Reasoning

The contract of employment was between the Claimant and the 1st Respondent, who paid his salary and terminated his services. Working at the 2nd Respondent's premises under outsourced services did not create an employment relationship. Relying on Abyssinia Iron & Steel, outsourced employees remain under the management and control of their direct employer. The 2nd Respondent's refusal to take the Claimant back did not transfer employer responsibility to it, so the objection was allowed and the 2nd Respondent struck out.

02

Whether the preliminary objection met the Mukisa Biscuits test of a pure point of law

Holding

The court found the objection had merit; the dispute turned on whether an employment relationship existed, a question the court resolved on the pleaded facts and the definition of employer under the Employment Act

Reasoning

The court adopted the Mukisa Biscuits definition that a preliminary objection raises a pure point of law argued on assumed facts, and cannot be raised if facts must be ascertained. The Claimant argued the objection required evidence, but the court proceeded to determine the relationship question from the pleadings and statutory definition, agreeing with the 2nd Respondent that no employment relationship existed on the facts as pleaded.

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Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • Outsourced employees remain employees of their direct employer (the labour supplier) and not of the client to whose premises they are seconded

Court orders

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  1. 1.The preliminary objection is allowed
  2. 2.The 2nd Respondent is removed from the proceedings
  3. 3.The case will proceed with the 1st Respondent as the only Respondent
Jurisdiction invoked
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, "Benard Ochieng Oduor v Trade Winds Aviation Services Limited & another [2020] KEELRC 152 (KLR)", Case Analysis (2020). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2020/152/eng@2020-12-04

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