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ELRCDismissedNot stated in the judgment as provided· [2025] KEELRC 1006 (KLR)

Osoro v Blockchain Cybertech Limited (The B-Hub) (Cause E228 of 2024) [2025] KEELRC 1006 (KLR)

Employment and Labour Relations Court
28 March 2025
SRSTELLA RUTTO
1,814 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 you cannot use a preliminary objection to kill a case when key facts, like whether someone was an employee or consultant, still need evidence.

What this practically means

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Executive summary

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The Respondent filed a Notice of Preliminary Objection dated 30th November 2024 contending that the Employment and Labour Relations Court lacked jurisdiction because the dispute concerned a consultancy contract rather than employment under Section 2 of the Employment Act, and sought striking out of the suit with costs. The Claimant opposed through Grounds of Opposition and an affidavit, asserting she was engaged as an employee (an UX Designer) under a Confidentiality Agreement dated 26th July 2021, that salary arrears were owed, and that the Respondent did not deny the arrears. The Respondent replied through a Replying Affidavit sworn by its advocate, Mr. Musyoki, and a Supplementary Affidavit sworn by its CEO, Granvil Wafula, maintaining the relationship was one of consultancy. The objection was canvassed by written submissions. Applying the settled principles in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd, together with George W M Omondi vs National Bank of Kenya, Oraro vs Mbaja and UFM v KFM, Judge Stella Rutto held that a preliminary objection must be a pure point of law argued on assumed facts and cannot stand where facts must be ascertained. Whether the Claimant was an employee or consultant was a factual question contested through rival affidavits and requiring evidence; the Respondent itself indicated it would adduce evidence to prove the consultancy relationship. The preliminary objection was therefore improperly raised and could not be sustained. The court overruled it, with costs in the cause.

Key legal issues

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01

Whether the preliminary objection alleging lack of jurisdiction over a consultancy contract dispute raised a pure point of law

Holding

The preliminary objection was improperly raised because it is blurred with contested factual details requiring proof by evidence; whether the claimant was an employee or consultant is a factual question that can only be determined at the hearing.

Reasoning

Applying the Mukisa Biscuit doctrine, the court found the objection depends on ascertaining the nature of the relationship between the parties. Both parties filed rival affidavits with extensive factual averments, and the respondent annexed the Confidentiality Agreement and stated it would adduce evidence to prove a consultancy relationship. Such factual contestation disqualifies the matter from being determined as a preliminary objection.

p. 3

Legal principles established

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  • A preliminary objection cannot be raised where any fact has to be ascertained or where the exercise of judicial discretion is sought; it must be a pure point of law.

Court orders

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  1. 1.The Preliminary Objection dated 30th November 2024 is overruled
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Employment ActSection 2
  • Civil Procedure RulesOrder 21 Rule 1
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSection 1B

Cases cited (4)

  • Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • George W M Omondi & another vs National Bank of Kenya Ltd & 2 others
    [2001] eKLR
  • Oraro vs Mbaja
    [2005] eKLR
  • UFM v KFM
    [2022] KEHC 14589 (KLR)
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act (invoked by parties in dispute over whether the dispute arises from an employment relationship)

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, "Osoro v Blockchain Cybertech Limited (The B-Hub) (Cause E228 of 2024) [2025] KEELRC 1006 (KLR)", Case Analysis (2025). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1006/eng@2025-03-28

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