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ELRCDismissedCause No E399 of 2021· [2022] KEELRC 1063 (KLR)

Joab Mehta Oudia v Registered Trustees of Nairobi Club [2022] KEELRC 1063 (KLR)

Employment and Labour Relations Court
20 January 2022
1,138 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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This ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually on 20th January 2022 by Linnet Ndolo J, determines a Preliminary Objection raised by the Respondent, the Registered Trustees of Nairobi Club, by notice dated 27th July 2021. The Respondent contended, on two grounds, that no entity set up under the Trustees (Perpetual Succession) Act, Cap. 164 exists as the Registered Trustees of Nairobi Club, and that consequently there is no Respondent in law against whom the orders sought could be directed. The court applied the classic definition of a preliminary objection in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors, which requires a pure point of law argued on the assumption that the facts pleaded by the other side are correct. Drawing on the Court of Appeal decisions in Grace Mwendwa Munjuri v Trustees of the Agricultural Society of Kenya and Trustees of the Agricultural Society of Kenya v James Gitonga, the court observed that where an employer's registration status is uncertain, the burden of proving its actual legal form does not rest solely on the employee. Noting that an employment contract existed between the Claimant and Nairobi Club, that the Respondent did not disclose its actual institutional form, and that the Respondent had filed an unconditional Memorandum of Appearance thereby submitting to the court's jurisdiction, the court held the objection misconceived. It was overruled with costs to the Claimant.

Key legal issues

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01

Whether the Preliminary Objection based on non-existence of the named Respondent could dispose of the suit

Holding

The Preliminary Objection was misconceived; the existence or otherwise of the Respondent's corporate status required evidence and could not be resolved as a pure point of law

Reasoning

The objection asserted that no entity known as the Registered Trustees of Nairobi Club exists under the Trustees (Perpetual Succession) Act. However, no disclosure was made of the actual institutional form of the Claimant's employer. From the evidence, an employment contract existed between the Claimant and Nairobi Club, and the rights and obligations arising from it cannot vanish merely because the Respondent may have been misnamed. Further, the Respondent had entered an unconditional Memorandum of Appearance, submitting to the court's jurisdiction.

p. 2
02

Who bore the burden of proving the Respondent's registration status

Holding

Where the issue of an employer's registration status is raised, the burden does not fall solely on the employee; the party denying proper suability must produce evidence of its actual legal form

Reasoning

Relying on Grace Mwendwa Munjuri v Trustees of the Agricultural Society of Kenya and Trustees of the Agricultural Society of Kenya v James Gitonga, the court noted that where it is unclear whether an entity is registered under the Societies Act or the Trustees (Perpetual Succession) Act, the burden shifts to the respondent to prove its registration status. A mere statement from the bar is insufficient to establish that an entity is not properly suited.

p. 1
03

Effect of entering an unconditional Memorandum of Appearance

Holding

By entering an unconditional appearance, the Respondent submitted to the jurisdiction of the court and could not later challenge it unilaterally

Reasoning

Citing Kanti & Co Ltd v South British Insurance Co Ltd and Billy Graham Owuor v Daudi Sabin Bahira, the court held that the object of a Memorandum of Appearance is to acknowledge the dispute filed. Where the appearance is unconditional, the party thereby submits to the jurisdiction of the court, and the plaintiff acquires a vested interest which the defendant cannot deprive him of at his whim.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • An employee cannot lose a claim against an employer simply because the employer has been improperly described or misnamed
  • A party entering an unconditional appearance submits to the jurisdiction of the court

Court orders

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  1. 1.The Respondent's Preliminary Objection is overruled
  2. 2.Costs of the Preliminary Objection to the Claimant

Authorities

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Legislation

  • Trustees (Perpetual Succession) ActCap. 164; Section 33
  • Societies ActNot specified

Cases cited (6)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors
    [1969] E.A 696
  • Grace Mwendwa Munjuri v Trustees of the Agricultural Society of Kenya
    [2017] eKLR
  • Trustees of the Agricultural Society of Kenya v James Gitonga
    [2017] eKLR
  • Kenya Hotels and Allied Workers Union v Diani Sea Resort t/a Carslake Nominee Limited
    [2015] eKLR
  • Kanti & Co Ltd v South British Insurance Co Ltd
    [1981] KLR, 6
  • Billy Graham Owuor v Daudi Sabin Bahira & another
    [2012] eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction of the Employment and Labour Relations Court

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, "Joab Mehta Oudia v Registered Trustees of Nairobi Club [2022] KEELRC 1063 (KLR)", Case Analysis (2022). Cause No E399 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/1063/eng@2022-01-20

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