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ELRCDismissedNot stated in the judgment (Statement of Claim under ELRC; Notice of Motion dated 5th May 2025)· [2025] KEELRC 2490 (KLR)

Rao v Shreeji Chemicals Limited (Employment and Labour Relations Cause E938 of 2022) [2025] KEELRC 2490 (KLR)

Employment and Labour Relations Court of Kenya
18 September 2025
JKJ. W. Keli
2,211 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 refused to strike out a director's unfair termination claim, ruling that whether a director can also be an employee must be decided at trial.

What this practically means

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Executive summary

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The respondent, Shreeji Chemicals Limited, filed a Notice of Motion dated 5th May 2025 under Order 2 rule 15(1)(b), (c) and (d) and Order 51 rule 1 of the Civil Procedure Rules seeking to strike out the claimant Mukkasa Giridhar Rao's Statement of Claim as scandalous, frivolous, vexatious and an abuse of court process, and to dismiss the cause with costs. The respondent argued that the claimant had obtained an order in Nairobi HCCOMM PET. No. E005 of 2021 restraining his removal as an employed director, had resigned as a director on 24th January 2022, had no separate employment contract, and had failed to disclose these facts - amounting to abuse of process and unclean hands. The claimant opposed, relying on the respondent's own witness statement admitting his employment, a payslip, statutory deductions (PAYE, NSSF, NHF), and a suspension notice preserving his terms of employment, and invoked the doctrine of approbation and reprobation. Justice J.W. Keli held that the application raised one issue: whether the suit should be struck out. Under Order 2 rule 15(2), the court considers only the pleadings, not evidence. On the face of the statement of claim and response, an employer-employee relationship was disclosed and the cause of action was reasonable, attracting a defence on merit. Whether the claimant held a dual capacity as director and employee was a matter for trial. Applying the settled jurisprudence that striking out is draconian and reserved for plain cases, the court dismissed the application with costs to the claimant.

Key legal issues

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01

Whether the Statement of Claim should be struck out under Order 2 rule 15

Holding

The application failed; the claim disclosed a reasonable cause of action and attracted a defence on merit

Reasoning

The court applied Order 2 rule 15(2), restricting itself to the statement of claim and statement of response without considering evidence. The pleadings disclosed an admitted employer-employee relationship and a claim for compensation for unfair termination. Precedent requiring striking out only in plain cases was applied, and whether the claimant held a dual capacity was a trial issue.

p. 4
02

Whether the claimant's alleged material non-disclosure and dual capacity rendered the suit an abuse of process

Holding

Alleged non-disclosure and the question of dual capacities as director and employee are issues to be determined on merit after hearing, not on a striking-out application

Reasoning

The respondent relied on the claimant's resignation as director and prior High Court proceedings. The court held that the issue of whether the claimant held a different arrangement from being a director to claim to be an employee is a matter for the trial, and removing him from the seat of justice would be drastic and unfair at the interlocutory stage.

p. 4

Legal principles established

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  • On an application under Order 2 rule 15(2), the court considers only the pleadings, not evidence, to determine whether a suit discloses no reasonable cause of action
  • Striking out a pleading is a draconian step permitted only in plain cases where the pleading is incurable by amendment

Court orders

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  1. 1.The Notice of Motion dated 5th May 2025 is dismissed
  2. 2.Costs of the application to the claimant/respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 2, rule 15(1)(b), (c), (d)
  • Civil Procedure Rules, 2010Order 51, rule 1
  • Civil Procedure Rules, 2010Order 2, rule 15(2)
  • Constitution of Kenya, 2010Article 162(2)(a)
  • Employment and Labour Relations Court Actsection 12

Cases cited (8)

  • Safaricom PLC v Kinuthia & 2 others
    [2025] KEHC 3789 [KLR]
  • Merchant Bank Ltd v George Fredrick Wekesa
    Civil Appeal No. 54 of 1999
  • Oryx Energies Kenya Limited v Mastermind Kenya Limited
    [2017] KEHC 5208 [KLR]
  • DT Dobie & Co [K] Ltd v Muchina
    [1982] KLR 1
  • Joseph Ngii v Republic
    [2020] eKLR
  • Kivanga Estates Limited v National Bank of Kenya Limited
    [2017] KECA 591 [KLR]
  • Co-Operative Merchant Bank Ltd v George Fredrick Wekesa
    Civil Appeal No. 54 of 1999
  • Yaya Towers Limited v Trade Bank Limited [In Liquidation]
    Civil Appeal No. 35 of 2000
Jurisdiction invoked
Article 162(2)(a) of the Constitution and 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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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Rao v Shreeji Chemicals Limited (Employment and Labour Relations Cause E938 of 2022) [2025] KEELRC 2490 (KLR)", Case Analysis (2025). Not stated in the judgment (Statement of Claim under ELRC; Notice of Motion dated 5th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2490/eng@2025-09-18

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