Bright v Tractbel Engineering GMBH (Formerly Lahmeyer International Gmbh) (Cause E823 of 2024) [2026] KEELRC 1445 (KLR) (28 May 2026) (Ruling)

Bright v Tractbel Engineering GMBH (Formerly Lahmeyer International Gmbh) (Cause E823 of 2024) [2026] KEELRC 1445 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEELRC 1445 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Cause E823 of 2024 HS Wasilwa, J May 28, 2026 Between Nigel Bright Claimant and Tractbel Engineering GMBH( Formerly Lahmeyer International Gmbh) Respondent Ruling 1.In opposition to the instant suit, the Respondent filed a preliminary objection dated 25th February 2026 on the following grounds:1.The respondent is a company incorporated under the laws of Germany and is thus domiciled outside the jurisdiction of this Court. The claimant did not seek or obtain leave of this court to effect service of summons outside Kenya as expressly required by Rule 28 (3) of the Employment and Labor Relations Court (Procedure) Rules, 2024. In the absence of prior leave authorizing service outside the jurisdiction, the purported service in the local dailies published in Kenya was invalid ab initio, and the court’s jurisdiction over the respondent and to entertain the suit against it has not been invoked. See Raytheon Aircraft Credit Corporation & another v Air Al-Faraj Limited [2005] KECA 312 (KLR) and Fonville v. Kelly ITI [2002] 1 EA 71.2.The claimant was at all material times an independent contractor and not an employee of the respondent. No employment contract existed between the parties that could invoke the specialized jurisdiction of this Honourable Court. See Maurice Oduor Okech v. Chequered Flag Ltd [2013] eKLR and Alhassan Bah v. Living Goods Kenya [2024] eKLR.3.In any event, the contract for service having been terminated on 31st March 2018, the claimant’s right to sue under the contract whether under the Limitation of Actions Act or under the Employment Act lapsed prior to the commencement of these proceedings on 30th September 2024. See Divecon Ltd v. Samani (1995-1998) 1 EA 48, and Rift Valley Railways (Kenya) Ltd v. Hawkins W. Musonye & Another [2016] eKLR.4.Each ground independently and collectively demonstrates that the suit is unsustainable in law, is an abuse of court process and should be struck out or dismissed with costs to the Respondent. Respondent’s Submissions 2.The Respondent submitted that the Preliminary Objection satisfies the threshold set out in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, as it raises pure points of law capable of disposing of the suit. Reliance was placed on the description of a preliminary objection by Sir Charles Newbold in the case that a preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. 3.On service and jurisdiction, the Respondent submitted that it is a foreign entity not domiciled in Kenya, therefore, it is outside the jurisdiction of this Court. Rule 28(3) of the Employment and Labour Relations Court Rules, 2024 requires a Claimant to first obtain leave of Court before effecting service outside Kenya, a requirement mirrored under Order 5 Rules 21, 22 and 25 of the Civil Procedure Rules. 4.It was submitted that the Claimant neither sought nor obtained leave to serve the Respondent outside this Court’s jurisdiction. The Respondent argued that leave for service out of jurisdiction is a prerequisite to invocation of jurisdiction over a foreign party. It cited Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3 others [2019] KECA 471 (KLR): “The manner in which such jurisdiction is assumed by the court is that firstly, the plaintiff has to seek leave of the court to serve such summons outside the court’s jurisdiction. The purposes of seeking leave is to enable the court to weigh the reasons adduced by the plaintiff and determine whether a proper case has been made out for service of summons outside its jurisdiction. The principles which govern the court in determining whether or not to grant leave are set out, though not exhaustively, under Order 5 Rule 25.” 5.Relying on Rebeca Mwikali v Guy Andre De Vos & 3 others [2022] eKLR wherein the Court held: “…consequences of failure to obtain leave, ……………. is not a mere procedural matter it goes to the root of jurisdiction and even if I were to try and salvage it under the provisions of article 159 (2)(d) of the Constitution I would be wrong.” It was submitted that the defect is not curable under Article 159(2)(d) of the Constitution as it goes to the root of jurisdiction. 6.It was submitted that the Claimant failed to disclose that the Respondent was a foreign entity and instead sought leave before Radido J. on 10th November 2025 to effect substituted service through advertisement in the Daily Nation issue of 24th November 2025. Such service was ineffective since no leave had been obtained for service outside jurisdiction. 7.It further submitted that on 11th March 2026, counsel for the Claimant effectively conceded the defect by indicating intention to file a formal application for leave to serve outside jurisdiction. 8.The Respondent argued that failure to comply with Rule 28(3) deprived the Court of jurisdiction. Consequently, until such leave is sought and granted, this Court cannot lawfully entertain the claim against the respondent. The claim, therefore, is fatally defective for want of jurisdiction and ought to be struck out on this ground alone. 9.On the existence of an employment relationship, the Respondent submitted that the Claimant’s own pleadings demonstrate that he was engaged as an independent contractor and not an employee. It referred to paragraphs 4, 5, 6 and 7 of the Claim wherein the Claimant pleaded that he rendered consultancy services pursuant to a “Freelance Agreement” and was remunerated through monthly fees payable upon submission of invoices and timesheets. 10.The Respondent submitted that the arrangement was clearly a consultancy engagement and not a contract of service. It relied on the ordinary meaning of “freelance” as defined in the New Shorter Oxford English Dictionary as: “a person operating without permanent commitments in a particular sphere of activity; a person who works in a specialist area for no fixed employer.” 11.On employment relationship, the Respondent submitted that when determining the existence of an employment relationship the Court must consider the entire spectrum of facts and circumstances, rather than the terminology in the pleadings or contracts as held in Maurice Oduor Okech v Chequered Flag Limited [2013] eKLR. 12.It was submitted that Section 12(1) of the Employment and Labour Relations Court Act limits the jurisdiction of this Court to disputes arising out of employment relationships, while Section 2 of the Employment Act defines an employee as a person employed for wages or a salaryincluding apprentices and indentured learners. 13.The Respondent submitted that the Court of Appeal in Kenya Pipeline Company Ltd v Ndegwa & another [2023] KECA 226 (KLR) distinguished between an independent contractor and an employee holding that a court should consider: “ the nature of the work; the existence or non-existence of a right of supervision on the part of the employer; the manner of payment (eg, whether the employee is paid a fixed rate or commission); the relative dependence or freedom of action of the employee in the performance of his or her duties; the employers power of dismissal; whether the employee is precluded from working for another, whether the employee is required to devote a particular amount of time to his or her work; whether the employee is obliged to perform his or her duties personally; the ownership of the working facilities and whether the employee provides his or her own tools and equipment; the place of work; the length of time of the employment; the intention of the parties, etc” 14.Further reliance was placed on Kenya Hotels & Allied Workers Union v Alfajiri Villas (Magufa Ltd) [2014] KEELRC 860 (KLR), where the Court held that hallmarks of an independent contractor include invoicing for services, freedom to work for others and operating an independent business. 15.It is therefore the Respondent’s submission that the Claimant rendered specialized consultancy services and invoiced monthly for payment, characteristics inconsistent with an employment relationship. It submitted that no employer–employee relationship existed and consequently this Court lacks jurisdiction. 16.On limitation, the Respondent submitted that even assuming an employment relationship existed, the suit is statute barred. According to paragraph 9 of the Claim, the Claimant received notice of intention to terminate the Freelance Agreement on 23rd February 2018 with the effective date of termination being 31st March 2018. Thus, any cause of action for wrongful termination or unpaid dues under that contract arose no later than 31st March 2018. 17.It submitted that the Claimant ought to have instituted proceedings by 31st March 2021. However, the suit was only filed on 30th September 2024, approximately three years and six months outside the statutory limitation period. 18.The Respondent argued that Section 90 is couched in mandatory terms and does not permit extension of time. Reliance was placed on Beatrice Kahai Adagala v Postal Corporation of Kenya [2015] eKLR, where the Court of Appeal underscored that Section 90 is couched in mandatory terms: a claim based on an employment contract must be filed within 3 years, and the limitation period is never extended in matters based on contract. The Court further held that courts have no discretion to extend the three-year timeline in employment disputes. 19.The Respondent further argued that even if the dispute were treated as an ordinary contractual claim rather than an employment dispute, it would still be time barred under the six-year limitation period prescribed by the Limitation of Actions Act since the claim ought to have been filed by 31st March 2024. 20.It is the Respondent’s submission that the suit is incurably defective on all three grounds raised in the Preliminary Objection. It argued that each ground independently suffices to dispose of the suit and collectively demonstrates that the claim is untenable in law and an abuse of the court process. The Respondent therefore urged the Court to uphold the Preliminary Objection and dismiss the suit with costs. Claimant’s Submissions 21.The Claimant submitted that the Respondent’s contention that it is domiciled outside Kenya does not justify the upholding of the Preliminary Objection at this stage. 22.It was submitted that it is trite law that a court assumes jurisdiction over a foreign defendant once summons have been properly served. Reliance was placed on the Court of Appeal decision in Misnak International (UK) Limited v 4MB Mining Limited C/O Ministry of Mining, Juba Republic of South Sudan & 3 others [2019] KECA 471 (KLR),“Additionally, summons to enter appearance also plays another pivotal role when it comes to a defendant who is outside the court’s jurisdiction. ……... The manner in which such jurisdiction is assumed by the court is that firstly, the plaintiff has to seek leave of the court to serve such summons outside the court’s jurisdiction….. Secondly, upon such leave being granted, the summons has to be served upon such a defendant. It is only upon such service of the summons that a court assumes jurisdiction over a foreign defendant and not a moment sooner……….. In our view, the learned Judge by directing service of the application before determining the issue of leave placed the cart before the horse.” 23.The Claimant submitted that since the Respondent alleges that it is domiciled outside Kenya and no application for leave to serve outside jurisdiction has yet been made or granted, then the objection founded on jurisdiction is premature. 24.He submitted that no substantive proceedings have been undertaken against the Respondent and therefore no prejudice would be occasioned to it. 25.On the issue whether the Claimant was an employee or an independent contractor, the Claimant submitted that the issue is factual in nature, thus, incapable of determination by way of a preliminary objection. 26.The Claimant submitted that a preliminary objection must strictly raise pure points of law and cannot be sustained where facts are disputed. Reliance was placed on Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696 as cited in Oraro v Mbaja [2005] KEHC 3182 (KLR), where the Court stated:“A “preliminary objection”, correctly understood, is now well identified as, and declared to be a point of law which must not be blurred with factual details liable to be contested and in any event, to be proved through the processes of evidence. Any assertion which claims to be a preliminary objection, and yet it bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection.” 27.It was submitted that the issue whether the Claimant was an employee or an independent contractor remains disputed and can only be determined upon hearing evidence at trial. 28.The Claimant submitted that whereas the Respondent alleges that he was an independent contractor, paragraph 4 of the Statement of Claim pleads that he was an employee of the Respondent while paragraph 10 pleads unlawful termination. He further submitted that the reliefs sought in the Statement of Claim relate to compensation for unfair labour practices. 29.It was therefore submitted that the second limb of the Preliminary Objection is unsustainable as it raises disputed factual matters requiring evidentiary interrogation. 30.Without prejudice to the foregoing, the Claimant submitted that the manner in which the Claim has been framed places the dispute within the jurisdiction of this Court under Section 12 of the Employment and Labour Relations Court Act. 31.On limitation, the Claimant submitted that the Respondent, having not subjected itself to the jurisdiction of the Court through proper service pursuant to leave, lacks locus to raise the issue of limitation at this stage. 32.Without prejudice thereto, the Claimant submitted that the delay in filing the suit was occasioned by matters beyond his control. He submitted that the said matters were deponed to in the Affidavit Showing Cause dated 18th September 2025 filed in response to the notice to show cause why the suit should not be dismissed for want of prosecution. The Claimant urged the Court to consider the contents of the said affidavit. 33.It is the Claimant’s submission that the Preliminary Objection is not a proper preliminary objection as it raises mixed issues of law and fact. He further submitted that the Court has not yet assumed jurisdiction over the Respondent and urged the Court to dismiss the Preliminary Objection. 34.I have considered the averments and submissions of the parties. The respondents raised various issues on the jurisdiction of this court to entertain this claim, the respondent being a foreign company. They also raise the issue of whether the claimant was an employee or a consultant with the said company. 35.The issues so raised can only be determined by submission of evidence which will go outside the purview of the celebrated Mukisa Biscuit case. It is therefore the position of this court that the matters raised cannot be resolved as a preliminary objection at this point but could await the determination of the entire claim. 36.I therefore decline to grant any orders on the preliminary objection and direct parties to proceed with the main claim. Costs in the cause. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 28TH DAY OF MAY, 2026.HELLEN WASILWAJUDGE