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ELRCDismissedCause No E167 of 2024· [2024] KEELRC 2203 (KLR)

Musau v Adrian Kenya Limited (Cause E167 of 2024) [2024] KEELRC 2203 (KLR)

Employment and Labour Relations Court
18 September 2024
JGJACOB GAKERI
1,464 words in judgment
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The bottom line

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The Employment Court in Nairobi dismissed an employer's attempt to strike out an employee's case and amend its defence, warning against delay tactics.

What this practically means

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Executive summary

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The Respondent/Applicant moved the Employment and Labour Relations Court at Nairobi by Notice of Motion dated 31st May 2024 seeking leave to amend its defence and, in the same application, striking out of the Claimant's suit, with costs. The application was supported by an affidavit of Benard W. Njoroge, the Respondent's Managing Director, who deposed that the Respondent never engaged the Claimant as an employee or paid salary as alleged, that the Respondent was the wrong party to be sued, and that the suit was fatally defective. The Claimant, who deponed to employment on a one-year fixed term contract effective 1st August 2023 as Group Commercial Director at Kshs.654,631.63 per month, opposed the application as an afterthought made in bad faith, noting payslips were issued but no payment effected and that a mutual separation agreement dated 22nd December 2023 acknowledged the employment relationship. The Applicant filed no submissions. The Court framed a single issue: whether the application was merited. It found the two reliefs sought contradictory. On striking out, it applied Salomon v Salomon on corporate separateness but noted the Applicant produced no certificate of registration or list of directors, and that payslips are not contractual documents; the existence of an employment relationship can only be determined on the totality of evidence at trial, not at the interlocutory stage. On amendment, no reason or justification was offered under Rule 14(6) of the ELRC (Procedure) Rules, 2016. The Court agreed the application was an afterthought designed to delay the suit and dismissed it with costs on 18th September 2024.

Key legal issues

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01

Whether the Claimant's suit should be struck out for want of proper party or absence of employer-employee relationship

Holding

The application to strike out failed; the payslips were not contractual documents and the employment question requires full evidence at trial

Reasoning

The Applicant invoked the Salomon principle of corporate separateness, contending that payslips showed the salary was paid by another company. However, the Applicant provided no certificate of registration or list of directors/shareholders, and no shareholder or director was enjoined. Payslips are not contractual documents. The existence of an employment relationship depends on the totality of evidence at trial, not interlocutory material.

p. 3
02

Whether leave to amend the defence should be granted

Holding

Leave refused; no reason or justification for the amendment was given

Reasoning

Under Rule 14(6) of the ELRC (Procedure) Rules, 2016, a party may amend after the close of pleadings only with leave of court. Granting such leave is a judicial discretion to be exercised judiciously. Here neither the grounds on the Notice of Motion nor the Supporting Affidavit gave any reason for the amendment, which the Court found to be an afterthought designed to delay the suit.

p. 4
03

Whether the dual reliefs sought (amendment and striking out) were competent

Holding

The Court found the two reliefs contradictory and indicative of bad faith

Reasoning

The Applicant simultaneously sought leave to amend its defence and striking out of the entire suit, positions which are mutually inconsistent - if the suit is struck out there is no defence to amend. The Claimant argued, and the Court accepted, that the application was actuated by bad faith and intended to delay the hearing of the suit.

p. 3

Legal principles established

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  • A company is a legal entity distinct and separate from its members, managers and directors
  • Whether a person is an employee of another can only be determined on the totality of evidence, not at the interlocutory stage
  • Amendment of pleadings after close of pleadings requires leave of court and involves judicious exercise of discretion

Court orders

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  1. 1.The Applicant/Respondent's Notice of Motion dated 31st May, 2024 is dismissed with costs

Authorities

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Legislation

  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 14(6)
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of Kenya, 2010Articles 159(2)(d) and 48
  • Civil Procedure Act (Chapter 21, Laws of Kenya)Section 1B

Cases cited (4)

  • Salomon V Salomon & Co. Ltd
    (1897) A.C. 22
  • Grain Pro Inc Ltd V Andrew Waithaka Kiragu
    (2019) eKLR
  • Uchumi Supermarkets Ltd & another V Sidhi Investments Ltd
    Appeal No. 192 of 2018
  • Joseph Njoroge Mbugua (suing under Power of Attorney)
    PA 74/5/19 HCCC No. 14 of 2020
Jurisdiction invoked
Employment and Labour Relations Court (Procedure) Rules, 2016, Rule 14(6)

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, "Musau v Adrian Kenya Limited (Cause E167 of 2024) [2024] KEELRC 2203 (KLR)", Case Analysis (2024). Cause No E167 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2203/eng@2024-09-18

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