[2016] KEELRC 1055 (KLR)
The Court found that the respondent's preliminary objection on jurisdiction was not adequately supported by the pleadings, as the defence did not clearly state the claimant was engaged as a consultant. The issue was only raised in the notice of preliminary objection and submissions, not in the substantive pleadings....
Source-derived case information.
- Citation
- [2016] KEELRC 1055 (KLR)
- Parties
- Claimant: Beatrice Om’mbaka Osienwa; Respondent: Information Professionals Africa Limited; Respondent: Viscar Industrial Capacity Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1675 of 2015
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction
- Outcome
- preliminary objection dismissed; suit to proceed to trial
- Judges
- NJ Abuodha
- Legal Topics
- Jurisdiction of Employment Court, Contract of Service Vs Contract for Services, Employer Employee Relationship
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Om’mbaka Osienwa
Claimant
Information Professionals Africa Limited
Respondent
Viscar Industrial Capacity Limited
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Jurisdiction
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to hear the suit given the alleged absence of an employer-employee relationship.
- 2 Whether the claimant was engaged under a contract of service or a contract for services.
Ratio Decidendi
The Court found that the respondent's preliminary objection on jurisdiction was not adequately supported by the pleadings, as the defence did not clearly state the claimant was engaged as a consultant. The issue was only raised in the notice of preliminary objection and submissions, not in the substantive pleadings. The Court was not persuaded that the objection was sufficiently established to warrant dismissal of the suit for want of jurisdiction. Therefore, the objection was disallowed, and the matter was directed to proceed to trial on its merits, with liberty for the respondent to revisit the issue during trial and final submissions.
Court Disposition
preliminary objection dismissed; suit to proceed to trial
Orders
- The preliminary objection is disallowed.
- The suit shall proceed to trial on merit.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 1675 OF 2015
BEATRICE OM’MBAKA OSIENWA……………………………CLAIMANT
VERSUS
INFORMATION PROFESSIONALS AFRICA LIMITED……………………………1ST RESPONDENT
VISCAR INDUSTRIAL CAPACITY LIMITED……….2ND RESPONDENT
RULING
1. The respondent herein raised an objection that the Court did not have jurisdiction to hear this suit for the reason that there was no employer-employee relationship between the claimant and the respondent. According to the respondent, the claimant was a consultant hence a holder of contract for services as opposed to contract of service which is the essence of an employment relationship.
2. Counsel for the respondent in his submissions therefore argued that this Court’s jurisdiction being specialized and confined to among others, disputes arising out of contract of service, it does not have jurisdiction to adjudicate over the dispute herein which was a contract for services.
3. The Court has carefully considered the pleadings herein more particularly the defence filed by the respondents. The defence at paragraph 3 and 4 for example deny that the claimant was engaged by the respondent as alleged but does not go further to state how else she was engaged if at all. Nowhere in the pleadings has the respondent directly raised the issue of the claimant being engaged as a consultant. The issue is raised only in the notice of preliminary objection and submissions by counsel for the respondent.
4. The claimant on the other hand has averred that she was part of the support for the respondents who were consultants. She exhibited documents with her memorandum of claim in an attempt to justify her contention that indeed she was the respondent’s employee. The respondent has on the other only attached case law as exhibits to support their contention.
5. In the circumstances, the Court is not reasonably persuaded that the preliminary objection has been adequately laid out to warrant the discontinuance of this suit before this Court for want of jurisdiction.
6. The Court therefore disallows the objection and directs that the suit proceeds to trial on merit. The respondent is however free to revisit the issue as one of the issues for trial and final submissions.
7. It is so ordered.
Dated at Nairobi this 17th day of June 2016
Abuodha Jorum Nelson
Judge
Delivered this 17th day of June 2016
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha Jorum Nelson
Judge