[2015] KEELRC 395 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAKURU

CAUSE NO. 327 OF 2014

JOSEPH GIDRAF WANJALA .................................................... CLAIMANT

V

DIANE HAMRICK .......................................................... 1ST RESPONDENT

UNITED METHODIST MISSION SCHOOLS(NAKURU)..........2nd RESPONDENT

RULING

Joseph Gidraf Wanjala (Claimant) was employed by United Methodist Mission Schools-Nakuru (2nd Respondent) as Principal, through a letter of appointment dated 10 January 2013.

On 24 July 2014, he commenced legal proceedings against Diane Hamrick (1st Respondent) and the 2nd Respondent alleging unfair termination of employment.

The Memorandum of Claim was accompanied with a Motion under certificate of urgency seeking various injunctive reliefs. Ongaya J who heard the motion granted an order directing the 2nd Respondent to convene a meeting to resolve the issue of the Claimant’s termination of employment.

The Memorandum of Claim and motion were served upon the Respondents and on 28 July 2014, the firm of Waiganjo & Co. Advocates filed a Memorandum of Appearance on behalf of the 2nd Respondent.

However, the firm of Kiarie, Kabita, Kihunyu & Co. Associates also filed a Memorandum of Appearance on behalf of both Respondents on 30 July 2014.

On the same day (30 July 2014), Ongaya J issued further interdict restoring the Claimant to his position as Principal and Manager of the 2nd Respondent and allowing the 1st Respondent to file a Response to the Memorandum of Claim.

The 1st Respondent filed another motion on 18 August 2014 seeking stay of execution and/or review of the orders by Ongaya J, and the same was argued and I rendered a ruling on 14 November 2014 dismissing the same. The Court further directed that the Cause be set down for hearing on a priority basis.

Immediately after the ruling, Mr. Kabita informed the Court that the firm of Waiganjo & Co. Advocates had no instructions to act for the 2nd Respondent.

Because the Court thought it was just a normal passing of the baton from one firm of advocates to another, the Court directed the firm of Kiarie, Kabita, Kihunyu & Associates to file a Notice of Change of Advocates.

On 26 January 2015, the firm of Kiarie, Kabita, Kihunyu & Associates filed a Notice of Change of Advocates to come on record for the 2nd Respondent in place of Waiganjo & Co. Advocates.

However, this served as a catalyst for a no holds barred war, in which at times, decorum and courtesy expected of Advocates was thrown out of the window.

On 3 February 2015, Mr. Waiganjo appeared in Court and asserted that the Notice of Change of Advocates was irregular, he was still on record for the 2nd Respondent and that he wished to file an affidavit to that effect.

The Court allowed the respective Advocates the liberty to file any necessary documentation to enable it determine the issue of representation for the 2nd Respondent, as between the firms of Waiganjo & Co. Advocates and Kiarie, Kabita, Kihunyu & Associates.

The ensuing fight (on the application) was so vicious that even witnesses were called and examined at length.

Because of the view the Court has taken of the dispute as to representation of the 2nd Respondent, the Court will not delve in any depth as to the versions narrated by the witnesses. That narration only went to display a collateral war over property and assets which is being fought at another forum.

It is not the intention of this Court to attempt to help the parties fight that war. That war will only be fought in that other forum and the Court is aware that this war has been fought both before the Environment and Land Court and the Chief Magistrate’s Court.

The Claimant’s appointment letter dated 10 January 2013 was signed by the 1st Respondent as the Chairperson of the 2nd Respondent.

In his Memorandum of Claim, the Claimant contended that the 1st Respondent purported to unfairly terminate his employment on 19 July 2014. According to the Claimant, this was not in order because the 1st Respondent had been replaced as Chairperson of the 2nd Respondent.

Mr. Waiganjo took the position that the 2nd Respondent was owned and operated by the East Africa United Methodist Church, and that having been instructed by the Church, which owned the 2nd Respondent, he was properly on record. According to him, the 1st Respondent had been removed as Chairperson of the 2nd Respondent and she could not competently give any instructions to an advocate to act on behalf of the 2nd Respondent.

Mr. Kabita for the 2nd Respondent on the other hand took the contention that Mr. Waiganjo had no instructions to act for the 2nd Respondent.

And his reasons were that the 1st Respondent was still registered with the Ministry of Education as the Manager and sponsor of the 2nd Respondent, and that the United Methodist Church did not feature anywhere in the application for registration or registration certificate of the 2nd Respondent.

For purposes of employment and labour disputes, the Court is more concerned with who is an employer.

Under section 2 of the Employment Act, 2007, employer has been defined asmeans any person, public body, firm, corporation or company who or which has entered into a contract of service to employ any individual and includes the agent, foreman, manager or factor of such person, public body, firm, corporation or company.

The material placed before Court prima facie show that the 1st Respondent is registered with the Ministry of Education as the Manager of the 2nd Respondent.

The Claimant entered into a contract of service with the 2nd Respondent. That contract was signed by the 1st Respondent as the Chairperson of the 2nd Respondent.

Records produced before Court indicates that the 1st Respondent is still the registered manager of the 2nd Respondent.

For the purposes of the Employment Act, 2007, the 1st Respondent is an employer who is competent of being sued in a cause of action for unfair termination of employment.

And until such a time as the registration of the 1st Respondent as manager of the 2nd Respondent is changed, the 1st Respondent is the proper party to instruct an Advocate to represent the 2nd Respondent in a complaint of unfair termination of employment.

It is not disputed that the firm of Waiganjo & Co. Advocates was instructed by the United Methodist Church which also lays claim to ownership of the 2nd Respondent and such properties thereto.

But the present dispute is not about the ownership, it is about an employer and employee relationship.

The Court therefore reaches the conclusion that for purposes of the present employment dispute, it is the firm of Kiarie, Kabita, Kihunyu & Associates which is properly on record as expressed in the Notice of Change of Advocates.

The Court has already indicated that its intention is not delve into or aid any of the parties in the property ownership dispute between the Church and the Respondents and for this reason it will not discuss the immigration status of the 1st Respondent which was raised.

Further, the Court had directed that the main dispute be fixed for hearing on a priority basis.

In the view of the Court, that directive should be implemented and the parties should agree to a convenient date to have the Cause heard.

Each party to bear own costs.

Delivered, dated and signed in Nakuru on this 23rd day of October 2015.

Radido Stephen

Judge

Appearances

For Claimant Mr. Muthanwa instructed by Muthanwa & Co. Advocates

For 1st Respondent Mr. Kabita instructed by Kiarie, Kabita, Kihunyu & Associates

For 2nd Respondent Mr. Waiganjo instructed by Waiganjo & Co. Advocates

Court Assistant Nixon