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ELRCDismissedNot stated in the judgment· [2023] KEELRC 1544 (KLR)

Odera v Garda World Limited (Cause 2437 of 2017) [2023] KEELRC 1544 (KLR)

Employment and Labour Relations Court
16 June 2023
AMAnna Ngibuini Mwaure
2,998 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The Employment Court dismissed a Kshs 7.3 million gratuity claim because the worker could not prove Garda World Kenya was actually his employer.

What this practically means

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Executive summary

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The claimant, Anthony Lumumba Odera, sued the respondent, Garda World Kenya Limited, claiming breach of employment contract and gratuity for the period 2003 to 2017, quantified at Kshs 7,310,400, plus costs and interest. He alleged he was employed from September 2003 as Assistant Controller, rising to Deputy Human Resource Manager, and that his services were terminated by letter dated July 6, 2017 without payment of gratuity. The respondent denied ever being the claimant's employer and raised a jurisdictional objection. The respondent's evidence was that in 2016 it acquired shares in Kenya Kazi Limited, a holding company whose subsidiaries included Kenya Kazi Services Limited (KKSL), the claimant's actual employer; the subsidiaries continued as distinct entities and employees' terms were unchanged. The claimant's own evidence showed employment and confirmation by EARS Group Limited, termination, payslip, certificate of service and terminal dues all by KKSL. The court framed two issues: whether the claimant was employed by the respondent, and whether he could claim gratuity from it. Applying Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd on jurisdiction, and the plea that parties are bound by their pleadings, the court held that no employer/employee relationship between the claimant and respondent was established on the pleadings or evidence; the transfer of businesses argument was raised only at submissions and the acquisition was a share purchase, not a business transfer. The claim was dismissed for lack of proof, with each party bearing their own costs.

Key legal issues

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01

Whether an employment relationship existed between the claimant and the respondent

Holding

No employer/employee relationship was established; the claimant's employer was Kenya Kazi Services Limited, not the respondent, and the claimant produced no document (such as a payslip) showing employment by the respondent.

Reasoning

The claimant's employment and confirmation letters came from EARS Group Limited; his termination letter and payslip were issued by KKSL; terminal dues were paid by KKSL. The respondent acquired shares in the holding company, Kenya Kazi Limited, in 2016, and employees' terms and relationships with KKSL were unchanged. The claimant, an HR practitioner, should have known who his employer was.

p. 5
02

Whether the court had jurisdiction to entertain the claim for gratuity

Holding

Lacking an employment relationship as required by section 12 of the ELRC Act, the cause was not within the court's jurisdiction.

Reasoning

Guided by Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd, the court held that jurisdiction is everything and must be decided at the earliest opportunity on the material before it. Since no employment relationship with the respondent was established on the pleadings and evidence, the court had no basis to continue the proceedings.

p. 5
03

Whether the claimant could rely on the Transfer of Businesses Act at submissions stage

Holding

The Transfer of Businesses Act was not pleaded and could not be invoked at submissions stage, parties being bound by their pleadings; the acquisition was a share purchase, not a transfer of business.

Reasoning

The respondent relied on the Supreme Court's restatement that no party should be permitted to travel beyond its pleadings. The transfer of EARS or KKSL to the respondent was never pleaded in the claim, and the acquisition concerned the purchase of shares in KKL from individual shareholders, not a transfer of business under the Act.

p. 4

Legal principles established

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  • The jurisdiction of the Employment and Labour Relations Court is limited by the existence of an employment relationship, which the court must satisfy itself of before proceeding
  • Parties are bound by their pleadings and cannot travel beyond them

Court orders

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  1. 1.The claim is dismissed for lack of proof
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Transfer of Businesses Act (Cap 500, Laws of Kenya)sections 3(1), 3(2), 4(1)
  • Employment and Labour Relations Court Actsection 12(1)(a); section 12
  • Constitution of KenyaArticles 159(2)(d), 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (4)

  • Casmir Nyankuru Nyaberi v Mwakikar Agencies Limited (2016) eKLR
    (2016) eKLR
  • Raila Amollo Odinga & another v IEBC and 2 others 2017 eKLR
    2017 eKLR
  • Arikala Narasa Reddy v Venkata Ram Reddy Reddygari and another, Civil Appeal Nos 5710-571 of 2012 (2014)
    Civil Appeal Nos 5710-571 of 2012 (2014)
  • Owners of the Motor Vessel 'Lillian S' v Caltex Oil (Kenya) Ltd [1989] KLR 1
    [1989] KLR 1
Jurisdiction invoked
Section 12 of the Employment and Labour Relations Court Act, 2012

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, "Odera v Garda World Limited (Cause 2437 of 2017) [2023] KEELRC 1544 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1544/eng@2023-06-16

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