[2021] KEELRC 1125 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT NAIROBI

CAUSE NUMBER 1336 OF 2014

BETWEEN

JANET PISOI KIKAYAYA..............................CLAIMANT

VERSUS

1. LOCAL AUTHORITIES PROVIDENT FUND BOARD

2. DAVID KOROSS ...............................RESPONDENTS

RULING

1. The Claimant seeks, through her Statement of Claim, amended on 21st July 2015, Judgment against the Respondents, jointly and severally, in the following terms: -

a. Declaration that termination of the Claimant’s contract of employment was unfair and unlawful.

b. 12 months’ salary in compensation for unfair termination.

c. 7 months’ salary under the 50-year retirement rule.

d. Costs, interest and any other suitable order.

2. The Amended Statement of Claim describes the 1st Respondent as a Body Corporate, established by an Act of Parliament, Cap 272 the Laws of Kenya.

3. The 2nd Respondent is described as the Chief Executive Officer of the 1st Respondent, at the time the Claimant’s contract was terminated.

4. The Respondents filed an Application dated 25th February 2021, seeking an order that, the 2nd Respondent is discharged from the proceedings.

5. The Application is anchored on 9 Grounds listed on the face of the Notice of Motion, and elaborated in the Supporting Affidavit of the Respondent’s Learned Counsel, George Kithi, sworn on 25th February 2021.

6. The principal Grounds are that, the 2nd Respondent was Chief Executive Officer at all material times; the 1st Respondent is a Body Corporate; and the 1st Respondent is the only entity reposed with the power to sue and be sued, under its constitutive law.

7. The Claim against the 2nd Respondent is misplaced.

8. The Claimant filed Grounds of Opposition dated 8th March 2021. Her position is that the Application filed by the Respondents is res judicata. Similar objection was made by the Respondents, and declined by the Court in a Ruling dated 30th December 2015.

9. It is amplified by the Claimant that, the 2nd Respondent did not act in good faith, in dealing with the Claimant. He is personally liable. His personal actions justifying joinder, are disclosed in the Amended Statement of Claim. He dismissed the Claimant without reference to 1st Respondent’s Human Resource Department.

10. Parties agreed before the Court on 26th February 2021, to have the Application determined on the strength of their Pleadings and Submissions. They confirmed filing and exchange of Submissions at the last virtual mention, on 3rd June 2021.

11. Ruling was reserved for 30th July 2021, but regrettably the Court was not sitting.

The Court Finds: -

12. The Claimant was employed by the 1st Respondent Corporation, as Supply Chain Officer, on 21st September 2011.

13. Her letter of appointment was signed by Chief Executive Officer, Roba Duba. It was not signed by the 2nd Respondent.

14. Her probationary period under contract was extended in a letter dated 4th May 2012. Extension was by Acting Chief Executive Officer Bernard Mbogoh. It was not by the 2nd Respondent.

15. She was confirmed on permanent and pensionable terms in a letter dated 25th March 2013. Confirmation was by the Chief Executive Officer, now the 2nd Respondent herein, David Koross.

16. The Chief Executive Officer is an Employee of the Respondent. As can be seen from the above letters of appointment/ probation/ confirmation, the position of Chief Executive Officer has been held by different persons over time, during the Claimant’s tenure.

17. The position is created by the Act. The Holder serves on term-contract, prescribed by statute.

18. The Claimant did not have a contract with any of the Chief Executive Officers. Her contract was with the 1st Respondent, a Body Corporate imbued with the power to sue and be sued.

19. Although Agents, Foremen, Managers or Factors of Employers [including Public Bodies] may be deemed to be Employers under Section 2 of the Employment Act, there is no justification is holding the Chief Executive Officer of the 1st Respondent, a Public Body to be an Employer. The Claimant’s contract, and the law creating the 1st Respondent, are specific on who the Employer is. There is no reason in applying the broader definition of the term ‘Employer,’ in a matter where the relevant contract and the law, have clearly stated who the Employer is. The roles of the Chief Executive Officer and that of the 1st Respondent, are clearly defined by the statute.

20. Any actions taken by the 2nd Respondent, unfair or unlawful, against the Claimant, were taken in the name of the 1st Respondent. The actions cannot be attributed to the 2nd Respondent individually. He did not have a contract with the Claimant.

21. It is difficult to understand how the 2nd Respondent can be compelled to pay the Claimant compensation for unfair termination from his own pocket. He was an Employee, like the Claimant. He was executing his mandate as the Chief Executive Officer.

22. The Act creating the 1st Respondent grants the 1st Respondent the power to sue and be sued. It has not delegated this power to any of its Employees. It has not delegated to the Chief Executive Officer. It cannot be implied that the 2nd Respondent employed the Claimant and should share employment liability with the 1st Respondent.

23. The Application is not res judicata. The Court dealt with the capacity of the Local Authorities Provident Fund vis-à-vis the Local Authorities Provident Fund Board, as the Respondent. The Court allowed the Claimant its Application to amend the Claim, while dismissing Preliminary Objection to strike out the Claim, bringing in the Board in place of the Fund.

24. It was the finding of the Court that the Fund and the Board are creatures of the Act, the Fund being the juridica persona,and the technical anomaly was capable of rectification, without occasioning the Respondents prejudice.

25. The Ruling did not touch on the capacity of the Chief Executive Officer, to be sued individually, in this Claim.

26. The Court is persuaded that David Koross, Chief Executive Officer, is improperly joined to this Claim.

IT IS ORDERED: -

a. The 2nd Respondent, David Koross is discharged from these proceedings.

b. No order on the costs.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY, AT NAIROBI, UNDER MINISTRY OF HEALTH AND JUDICIARY COVID-19 GUIDELINES, THIS 10TH DAY OF AUGUST 2021.

JAMES RIKA

JUDGE