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ELRCPartially AllowedChamber Summons application dated 28/8/2020 (Employment and Labour Relations Court claim)· [2021] KEELRC 2107 (KLR)

Elizabth Ayoti Simiyu v Cbre Excellerate Cres (Pty) Limited [2021] KEELRC 2107 (KLR)

Employment and Labour Relations Court
22 February 2021
MNMATHEWS N. NDUMA
1,177 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 struck a South African CBRE company out of an employment case because the worker's actual employer was a different company.

What this practically means

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Executive summary

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The respondent, CBRE Excellerate CRES (PTY) Limited, applied by Chamber Summons dated 28/8/2020 to be struck out of the suit or, in the alternative, for dismissal of the suit for lack of a cause of action against it. It was supported by an affidavit of Gent Johannes Saaiman, its Human Resource Director, who deposed that the claimant was employed by CBRE Corporate Outsourcing (PTY) Limited and that the respondent, a South African company, had no nexus with the claimant, and that reliefs under Section 49 of the Employment Act lie only against an employer. The claimant opposed, contending that the respondent became her employer when facilities management merged under CBRE Excellerate Cres (Pty), that the respondent controlled her and determined her disciplinary case, and that a suit cannot be defeated by non-joinder or misjoinder under Order 1 Rules 9 and 10. The court framed two issues: whether the claimant has a cause of action against the respondent, and what remedy is available to the applicant. Relying on Savings and Loan (K) Limited v Gakombe on privity of contract and Werrot & Company Limited v Gregory on the tests for a necessary party, the court found the undisputed employment contract was with CBRE Corporate Outsourcing (Pty) Limited, that the respondent is a separate and distinct legal entity based in South Africa, and that no cause of action or right to relief was pleaded against it. An effective decree could be obtained against the actual employer without the respondent. The application was allowed with costs and the respondent was struck off the suit.

Key legal issues

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01

Whether the claimant has a cause of action against the respondent

Holding

No cause of action was disclosed against the respondent, a separate and distinct legal entity from the actual employer.

Reasoning

The contract of employment, undisputed on the record, was between the claimant and CBRE Corporate Outsourcing (Pty) Limited based at BAT in Kenya. The pleadings related entirely to that employment relationship. The respondent, CBRE Excellerate CRES (PTY) Limited, is a separate legal entity incorporated and operating in South Africa with no nexus to the claimant, so no right to relief arises against it.

p. 2
02

Whether the respondent is a necessary party

Holding

The respondent is not a necessary party; an effective decree can be obtained against the actual employer without it.

Reasoning

Applying the two tests in Werrot & Company Limited v Andrew Douglas Gregory, the court found the claimant had established no right to relief against the respondent and that an effective decree was possible against CBRE Corporate Outsourcing (PTY) Limited alone. The respondent was therefore improperly joined and struck out under Order 1 of the Civil Procedure Rules.

p. 2

Legal principles established

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  • A necessary party is one against whom there is a right to relief and without whom an effective decree cannot be passed.
  • A contract binds only the parties to it and cannot be enforced by or against a stranger to it.

Court orders

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  1. 1.The respondent/Applicant CBRE EXCELLERATE CRES (PTY) LIMITED is struck off the suit with costs.

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1, Rule 3
  • Civil Procedure Rules, 2010Order 1, Rules 9 and 10
  • Employment ActSection 49
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 18

Cases cited (2)

  • Savings and Loan (K) Limited –vs- Kanyenje Karangaita Gakombe & Another
    [2015] eKLR
  • Werrot & Company Limited and 3 Others –vs- Andrew Douglas Gregory
    eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act, 2007 and Civil Procedure Rules, 2010 (Order 1 Rules 3, 9 and 10)

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, "Elizabth Ayoti Simiyu v Cbre Excellerate Cres (Pty) Limited [2021] KEELRC 2107 (KLR)", Case Analysis (2021). Chamber Summons application dated 28/8/2020 (Employment and Labour Relations Court claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/2107/eng@2021-02-22

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