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ELRCPartially AllowedNot stated in judgment· [2023] KEELRC 1747 (KLR)

Mutisya v Arrow Motors Group East Africa Limited & 2 others (Cause E407 of 2022) [2023] KEELRC 1747 (KLR)

Employment and Labour Relations Court
14 July 2023
ANAbuodha J. N.
493 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 ruled a manager cannot be personally sued for employment disputes unless he acted beyond his authority, and who your real employer is must be decided at trial.

What this practically means

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Executive summary

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The 1st and 3rd respondents raised a preliminary objection contending that the Employment and Labour Relations Court lacked jurisdiction under section 12 of the Employment and Labour Relations Court Act because no employer-employee relationship existed between the claimant and them. They argued the pleadings disclosed only one employer per the letter of appointment, and that the 3rd respondent was joined merely because he was a manager of the alleged employers, which did not of itself create an employment relationship. The claimant countered that employee status is a question of fact, not law, and could only be ascertained after full trial. The court reviewed the pleadings and the letter of appointment and found it evident that the claimant was an employee of Arrow Motors E.A., the 1st respondent, with the 2nd respondent described as the main company and the 1st respondent its automotive division. The 3rd respondent was the managing director of both and in charge of the claimant's employment. The court held he was an agent of a disclosed principal and, nothing having been alleged that he acted outside his authorized responsibilities, he could not be personally liable. The preliminary objection therefore succeeded only to the extent that the 3rd respondent was struck off from the proceedings. The identity of the actual employer between the 1st and 2nd respondents was held to be a factual question reserved for trial. The court made no order as to costs and directed 'It is so ordered.'

Key legal issues

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01

Jurisdiction of the ELRC under section 12 where the employment nexus is disputed

Holding

The court has jurisdiction over the 1st and 2nd respondents as potential employers, but the 3rd respondent, being a manager/agent of a disclosed principal, was improperly joined

Reasoning

The court examined the pleadings and the letter of appointment. It found the claimant was employed by Arrow Motors E.A., with the 2nd respondent described as the main company and the 1st respondent its automotive division. The 3rd respondent was the managing director in charge of the claimant's employment. As an agent of a disclosed principal with no allegation of acting outside his authority, he could not be personally liable and was struck out.

p. 2
02

Whether the employment question is suitable for a preliminary objection

Holding

Partially: the objection succeeded only against the 3rd respondent on the pleadings; the identity of the actual employer among the 1st and 2nd respondents is a factual issue for trial

Reasoning

The respondents argued the question of employee status is one of fact requiring full trial. The court agreed in respect of the 1st and 2nd respondents but found the position of the 3rd respondent determinable on the pleadings, since nothing alleged against him fell outside his authorized responsibilities as managing director.

p. 2

Legal principles established

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  • A manager who is an agent of a disclosed principal is not personally liable in an employment claim unless he acted outside his authorized responsibilities
  • The existence of an employer-employee relationship is a question of fact to be ascertained, generally at trial

Court orders

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  1. 1.The 3rd respondent is struck off from the proceedings
  2. 2.The question of whether the 1st or 2nd respondent was the claimant's employer is left for determination at trial
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, "Mutisya v Arrow Motors Group East Africa Limited & 2 others (Cause E407 of 2022) [2023] KEELRC 1747 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1747/eng@2023-07-14

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