[2018] KEELRC 67 (KLR)
The court found that the claimant had pleaded a clear cause of action for constructive dismissal, based on allegations of intolerable working conditions, non-payment of salary, and lack of assigned duties while his contract was still in force. The court held that the respondent was properly sued and that there was...
Source-derived case information.
- Citation
- [2018] KEELRC 67 (KLR)
- Parties
- Claimant: Kenneth L. Indusa; Respondent: Lake Victoria North Water Services Board
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Cause 337 of 2017
- Procedural Posture
- Employment Cause / Ruling on Application to Strike Out Suit
- Outcome
- application to strike out dismissed with costs
- Judges
- MN Nduma
- Legal Topics
- Constructive Dismissal, Employment Contracts, Renewal of Contract, Deployment Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth L. Indusa
Claimant
Lake Victoria North Water Services Board
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Strike Out Suit
Legal Issues
- 1 Whether the claimant has established a cause of action for constructive dismissal against the respondent.
- 2 Whether the respondent has been properly sued or there is a case of misjoinder or non-joinder.
- 3 Whether the suit should be struck out at this stage.
Ratio Decidendi
The court found that the claimant had pleaded a clear cause of action for constructive dismissal, based on allegations of intolerable working conditions, non-payment of salary, and lack of assigned duties while his contract was still in force. The court held that the respondent was properly sued and that there was no misjoinder or non-joinder. The court further held that the submissions on constructive dismissal were premature at this stage, as the real issues needed to be determined at a full hearing. Consequently, the application to strike out the suit was dismissed with costs to the claimant.
Court Disposition
application to strike out dismissed with costs
Orders
- The application to strike out the suit dated 4th December, 2017 is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT KISUMU
CAUSE NO. 337 OF 2017
(Before Hon. Justice Mathews N. Nduma)
KENNETH L. INDUSA.....................................................................CLAIMANT
VERSUS
LAKE VICTORIA NORTH WATER SERVICES BOARD.....RESPONDENT
RULING
1. The Claimant commenced suit against Lake Victoria North Water Services Board alleging inter alia that –
a. He was employed by the Respondent as a commercial and finance manager on a three year fixed contract on 21st January, 2013.
2. The contract expired and was renewed for a further three years with effect from 4th February, 2016 up to 3rd February, 2019.
3. On 16th May, 2016, whilst the contract with the Respondent persisted, the Claimant was appointed Acting Managing Director Kakamega – Busia Water Supply.
4. The Claimant alleges, that in blatant breach of his contract of employment, the Claimant received a letter jointly authored by the Acting Managing Directors of Kakamega County Water and Sanitation Company Limited purportedly deploying the Claimant to Busia Water and Sewerage Services Co. Limited.
5. The Claimant did not move but continued to work for Respondent. However the working conditions for the Claimant have become into intolerable since he is hardly paid his salary on time or at all and is not assigned duties despite persistence of the contract of service.
6. This is the cause of action by the Claimant who seeks a declaration that he has been constructively dismissed and that he be paid arrear salaries and allowances and damages for constructive dismissal.
7. This is a clear cause of action by the Claimant against the Respondent. The Respondent needs to file a statement of defence and stop engaging in dilatory tactics so that the court can determine the real issues.
8. The submissions put forth by the Claimant as to what constitutes constructive dismissal are pre-mature. The Respondent in the court’s considered view has been properly sued. There is no case of mis joinder or non joinder.
9. The application to strike out the suit dated 4th December, 2017 is dismissed with costs.
Dated, Delivered and Signed in Kisumu this 20th day of December, 2018
Mathews N. Nduma
Judge
Appearances
M/s Adongo for Respondent/Applicant for the Claimant
Mr. Waweru for Claimant/Respondent
Chrispo – Court Clerk