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ELRCDismissedNot stated in judgment· [2024] KEELRC 1700 (KLR)

Nakitari v Busia Water & Sewerage Services Co Ltd & another (Cause 9 of 2023) [2024] KEELRC 1700 (KLR)

Employment and Labour Relations Court
26 June 2024
JKJ. W. Keli
1,611 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that a county public service board that issued employment letters must stay in the case and face the dispute.

What this practically means

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Executive summary

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This interlocutory ruling by the Employment and Labour Relations Court at Bungoma (J.W. Keli, Judge) dealt with an Amended Preliminary Objection dated 4th September 2023 and a Notice of Motion dated 23rd January 2024 by the 2nd Respondent (a county public service board), which sought to have itself expunged from an employment claim by the Claimant. The 2nd Respondent argued that no employer-employee relationship existed between it and the Claimant, that the 1st Respondent (a water and sewerage company) was a separate legal entity entitled to sue and be sued in its own name, and that a letter of renewal of the Claimant's contract dated 16th June 2023 was illegal, void and unenforceable for non-compliance with statutory recruitment procedures. The Claimant opposed, pointing out that his re-appointment, revocation and the deployment of an acting CEO were all effected by the 2nd Respondent's CECM and Chief Officer, and that the application was premature, the contested facts requiring evidence at the hearing. The court framed a single issue: whether the objection and application were merited. Applying Mukisa Biscuit Manufacturers Ltd v West End Distributors Ltd, it held the objection raised contested facts, not pure questions of law. It further held that by issuing both the renewal and revocation letters, the 2nd Respondent brought itself within the employment dispute, and that under Order 1 Rule 9 misjoinder cannot defeat a suit. Both the objection and the application were dismissed, with costs to the Claimant in the cause; parties were directed to take a hearing date in the claim.

Key legal issues

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01

Whether the amended preliminary objection raising lack of employer-employee relationship and separate legal entity is a pure point of law

Holding

It is not a proper preliminary objection because it raises contested facts requiring evidence

Reasoning

The objection challenged the joinder of the 2nd Respondent and alleged absence of an employment relationship. Applying Mukisa Biscuit, the court found these are contested factual issues that cannot be resolved on the assumption that pleaded facts are correct. A party issuing the renewal and revocation letters itself raised a factual dispute over the existence of an employment relationship, so the objection was improper and was dismissed.

p. 4
02

Whether the 2nd Respondent should be expunged from the proceedings for lack of privity of contract

Holding

No - by issuing the renewal letter of 16th June 2023 and the revocation letter of 28th July 2023, the 2nd Respondent brought itself within the employment dispute; misjoinder cannot defeat a suit

Reasoning

The court noted that both the renewal of contract and the revocation letter were issued by the 2nd Respondent, engaging it directly in the alleged employer-employee dispute. Further, Order 1 Rule 9 of the Civil Procedure Rules provides that misjoinder or non-joinder cannot defeat a suit, and the court may determine the controversy as regards the parties actually before it. The Notice of Motion was therefore dismissed for lack of merit.

p. 4

Legal principles established

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  • A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained
  • Misjoinder or non-joinder of parties cannot defeat a suit

Court orders

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  1. 1.The Notice of Motion dated 23rd January 2024 is dismissed for lack of merit
  2. 2.The amended Preliminary Objection is dismissed for being improper
  3. 3.Costs of the application and Preliminary Objection to the Claimant in the cause
  4. 4.Parties to take a hearing date in the claim

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 1B, 3, 3A
  • Civil Procedure RulesOrder 51; Order 1 Rule 9
  • Companies ActSection 19 (also referred to as Sections 4 and 16 in the affidavit)
  • Busia County Water and Sewerage Services Act, 2015Sections 4(1), 10, 10(1)
  • Water Act, 2016Water Services Regulations 2021 made thereunder

Cases cited (1)

  • Mukisa Biscuit Manufacturers Ltd. v West End Distributors Ltd.
    [1969] E.A. 696
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment dispute (not expressly stated in the ruling); interlocutory application brought under Sections 1, 1A, 1B, 3, 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules

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, "Nakitari v Busia Water & Sewerage Services Co Ltd & another (Cause 9 of 2023) [2024] KEELRC 1700 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1700/eng@2024-06-26

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