Motaung v Samasource Kenya EPZ Ltd t/a Sama & 2 others (Petition E071 of 2022) [2023] KEELRC 320 (KLR)
The bottom line
#Kenya's Employment Court refused to remove Meta and Facebook from a content moderator's lawsuit, but ordered the case to be served on them properly before it proceeds.
What this practically means
#Executive summary
#Key legal issues
#Competence of the Notice of Motion for lack of a supporting affidavit
The application was competent; neither Rule 19 of the Mutunga Rules nor Rule 17 of the ELRC (Procedure) Rules, 2016 makes a supporting affidavit mandatory.
Rule 19 of the Mutunga Rules uses both 'shall' and 'may', and on its ordinary reading the affidavit is integral to Form D but not obligatory. Rule 17(8) of the ELRC Rules similarly provides an affidavit only 'where the motion is supported by an affidavit'. Authorities relied on by the petitioner construed different rules and were distinguishable.
Whether the 2nd and 3rd Respondents should be struck off as parties
It was premature to strike them out; the allegations of agency, supervision and business operations in Kenya were matters of evidence at the heart of the petition.
The petitioner was engaged by the 1st Respondent under a contract governed by Kenyan law, but alleged the 2nd and 3rd Respondents were also his true employers who assigned and supervised his work and did business in Kenya. Those agency questions could only be resolved at the hearing; any prejudice to the foreign companies was compensable by costs.
Whether leave was required to serve the 2nd and 3rd Respondents out of jurisdiction
The Civil Procedure Rules applied and leave under Order 5 rule 21 ought to have been obtained; the petitioner did not establish the respondents were domesticated under Part XXXVII of the Companies Act, so the court was not satisfied it had assumed jurisdiction over them.
Following TNT Express, the Civil Procedure Rules apply where the ELRC Rules are silent on service abroad. The court accepted that service on the foreign respondents without leave was irregular, but held that acceptance of service by Anjarwalla & Khanna LLP did not obviate compliance, and that the petitioner had failed to prove the respondents carried on business in Kenya as registered foreign companies.
Whether non-compliance with Order 5 rule 21 was fatal to the claim
No - the petitioner was to be afforded an opportunity to regularise service rather than have the petition struck out.
Striking out would leave questions unanswered and contradict the injunction to administer justice without undue regard to procedural technicalities. The irregularity was curable, so the application was disallowed with costs in the cause.
Legal principles established
#- Rule 19 of the Mutunga Rules does not make a Supporting Affidavit mandatory for a Notice of Motion.
- Any person may be joined as a respondent to a constitutional petition so long as there is an allegation of violation or threatened violation of rights.
- The ELRC applies the Civil Procedure Rules, 2010 where the ELRC (Procedure) Rules, 2016 are deficient.
- Service of summons on a foreign defendant out of jurisdiction requires prior leave under Order 5 rule 21 of the Civil Procedure Rules.
- The burden of proving that a foreign company carries on business in Kenya under Part XXXVII of the Companies Act lies on the party asserting it.
- Substantive justice prevails over procedural technicalities unless the deficiency is grave.
Court orders
#- 1.The notice of motion application dated May 30, 2022 is disallowed.
- 2.Costs shall be in the cause.
- Jurisdiction invoked
- Articles 162 and 165 of the Constitution of Kenya, 2010; Employment and Labour Relations Court Act (exclusive original jurisdiction under section 12(1)(a))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Motaung v Samasource Kenya EPZ Ltd t/a Sama & 2 others (Petition E071 of 2022) [2023] KEELRC 320 (KLR)", Case Analysis (2023). Petition No E071 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/320/eng@2023-02-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.