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ELRCAllowedEldoret CMELRC No.265 of 2019 (Appeal)· [2025] KEELRC 2925 (KLR)

Esebwe v Pyramid Packaging Co. Limited & another (Employment and Labour Relations Appeal E053 of 2022) [2025] KEELRC 2925 (KLR)

Employment and Labour Relations Court
23 October 2025
MOM. Onyango
2,693 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court reinstated a worker's claim, ruling courts cannot strike out employment disputes over contested facts like when employment actually ended.

What this practically means

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Executive summary

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This is a first appeal to the Employment and Labour Relations Court at Eldoret against a ruling of the Chief Magistrate's Court delivered on 3rd November 2022, which allowed an application by the 1st Respondent, Pyramid Packaging Ltd, to strike out the Appellant's claim against it as time-barred under section 90 of the Employment Act. The Appellant, summarily dismissed in 2016, claimed he was jointly employed by the 1st and 2nd Respondents, with the 2nd Respondent acting as the 1st Respondent's employing agency; the 1st Respondent maintained the employment ended in 2007 and that the 2nd Respondent was an independent contractor. Disposing of the appeal by written submissions, the court applied the first appellate duty in Selle v Associated Motor Boat Co and the D.T. Dobie principle that striking out is draconian and only for the clearest of cases. It held that whether the Appellant's employment ended in 2007 or continued through the agency of the 2nd Respondent, and whether an agency relationship existed, were contested factual issues requiring evidence at trial, not resolution on affidavit. It further found the Appellant was denied a fair hearing, having been given no opportunity to respond to the Respondents' submissions filed a day before the ruling date. The court allowed the appeal, set aside the striking-out order, remitted the file to the trial court for hearing on the merits before a judicial officer other than Hon. R. Odenyo, and ordered costs of the appeal to be in the cause.

Key legal issues

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01

Whether the trial court erred in summarily striking out the claim against the 1st Respondent as time-barred

Holding

Yes. The claim raised contested factual issues - when the employment ended and whether an agency relationship existed - resolvable only by evidence, and the Appellant was denied a fair hearing on the application.

Reasoning

The trial magistrate disposed of the application summarily on affidavit evidence despite pleaded disputes over whether the Appellant's employment with the 1st Respondent ended in 2007 or continued through the 2nd Respondent as agent. Such questions of fact require proof at trial. Further, the Appellant was not given an opportunity to reply to the Respondents' submissions filed the day before the ruling date.

p. 6
02

Whether the Appellant was denied a fair hearing

Holding

Yes. The trial court ruled without allowing the Appellant to respond to the Respondents' submissions filed a day before the hearing.

Reasoning

The Respondents' submissions dated 14th September 2022 were filed one day before the parties appeared on 15th September 2022, and it was unclear if they had been served. The Appellant was entitled to file submissions in reply, even without a replying affidavit, and the least the court could do was allow that.

p. 6

Legal principles established

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  • Striking out pleadings is draconian and should be resorted to only in the clearest of cases
  • Contested factual issues cannot be resolved on interlocutory applications but only through evidence at trial

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling and order of the trial court delivered on 3rd November 2022 striking out the Appellant's claim against the 1st Respondent is set aside
  3. 3.The file is remitted back to the trial court for hearing and determination on the merits, to be presided over by a judicial officer other than Hon. R. Odenyo
  4. 4.The costs of the appeal shall be in the cause

Authorities

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Legislation

  • Employment Actsection 90
  • Employment Actsection 49(c)
  • Employment Actsection 51
  • Employment and Labour Relations Court Actsection 12
  • Civil Procedure RulesOrder 1 Rule 7

Cases cited (4)

  • D.T. Dobie & Co (K) Ltd v Muchina
    [1982] KLR 1
  • Rosephine Mumbe Munyoki & 4 others v Blue Edge Hotels Ltd & another
    [2016] eKLR
  • Safari Joseph Ngala & 2 others v Rapid Kate Services Ltd
    [2017] eKLR
  • Selle & another v Associated Motor Boat Company Ltd & Others
    [1968] EA 123
On appeal from
Chief Magistrate's Court at Eldoret (ELRC)
ELRC Suit No. 265 of 2019
Jurisdiction invoked
First appellate jurisdiction over the trial court ruling (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, "Esebwe v Pyramid Packaging Co. Limited & another (Employment and Labour Relations Appeal E053 of 2022) [2025] KEELRC 2925 (KLR)", Case Analysis (2025). Eldoret CMELRC No.265 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/2925/eng@2025-10-23

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