[2018] KEELRC 2441 (KLR)
The court found that the Objector is an institution owned and managed by the Respondent, and both fit the statutory definition of 'employer' under the Employment Act 2007. The Objector is merely a vehicle through which the Respondent conducts its hospital business. The Claimant was employed by the business, and the...
Source-derived case information.
- Citation
- [2018] KEELRC 2441 (KLR)
- Parties
- Claimant: Elizabeth Nduku; Respondent: The Mother Superior, Mary Immaculate Sisters; Objector: Mary Immaculate Cottage Hospital
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 856 of 2015
- Procedural Posture
- Employment Cause / Ruling on Objection to Execution
- Outcome
- Objection dismissed with costs to the Claimant. Execution to proceed against Objector's property.
- Judges
- J Rika
- Legal Topics
- Employer Definition, Execution of Judgment, Unfair Termination, Objector Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elizabeth Nduku
Claimant
The Mother Superior, Mary Immaculate Sisters
Respondent
Mary Immaculate Cottage Hospital
Objector
Procedural Posture
Employment Cause / Ruling on Objection to Execution
Legal Issues
- 1 Whether the Objector is a separate legal entity from the Respondent for purposes of execution of judgment.
- 2 Whether the Claimant is entitled to execute the judgment against the Objector's property.
- 3 Whether non-joinder of the Objector bars recovery of judgment proceeds.
Ratio Decidendi
The court found that the Objector is an institution owned and managed by the Respondent, and both fit the statutory definition of 'employer' under the Employment Act 2007. The Objector is merely a vehicle through which the Respondent conducts its hospital business. The Claimant was employed by the business, and the non-joinder of either the Objector or Respondent should not prevent her from recovering the judgment award. The court rejected the Objection, holding that the Claimant should not be delayed in enjoying her terminal dues and compensation for unfair termination, and allowed execution to proceed against the Objector's property.
Court Disposition
Objection dismissed with costs to the Claimant. Execution to proceed against Objector's property.
Orders
- The Objection by Mary Immaculate Cottage Hospital is rejected.
- Costs awarded to the Claimant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR
RELATIONS COURT AT MOMBASA
CAUSE NUMBER 856 OF 2015
BETWEEN
ELIZABETH NDUKU..............................................................................CLAIMANT
VERSUS
THE MOTHER SUPERIOR, MARY IMMACULATE SISTERS.....RESPONDENT
AND
MARY IMMACULATE COTTAGE HOSPITAL...................................OBJECTOR
RULING
1. Judgment was delivered in favour of the Claimant against the Respondent, on 13th December 2016. The Respondent was ordered to pay to the Claimant, terminal dues and compensation for unfair termination, at Kshs. 384,500.
2. The Claimant has applied for execution of decree issued in the Judgment. An Objection dated 23rd August 2017 has been filed by Mary Immaculate Cottage Hospital. The Objector states it is the rightful Owner of attached properties. The Objector did not know about the Claim, and is not a Party to the Claim.
3. The Claimant filed a Replying Affidavit sworn by herself on 11th September 2017. She states it is not contested that she was employed by the Objector Hospital as Clinical Officer. The Objector is owned by the Respondent. The Objection is intended to delay the Claimant from enjoying the outcome of her Claim.
The Court Finds:-
4. The Objector is an Institution owned, and managed, by the Respondent. This Institution employed the Claimant as a Clinical Officer.
5. The Objector and the Respondent both fit the description of the term ‘Employer’ under Section 2 of the Employment Act 2007. ‘Employer’ includes an agent, foreman, manager or factor of a person, public body or company who has entered into a contract of service to employ any individual. The Objector is a vehicle through which the Respondent carries on hospital business. It is not contested that the Respondent is owner and manager of the Objector. Non-joinder of one, or the other limb of the same enterprise, in a Claim brought by an Employee, should not bar recovery of the proceeds of Judgment made in favour of the Employee, from the business which is common to the Objector and the Respondent. The Claimant worked for the business, and should not be unnecessarily delayed in enjoying her terminal dues and compensatory award. The Objection is rejected with costs to the Claimant.
Dated and delivered at Mombasa this 15th day of February 2018.
James Rika
Judge