[2018] KEELRC 2276 (KLR)

KSRS v We Effect (Swedish Co-operative Centre) & 2 others (Cause 118 of 2016) [2018] KEELRC 2276 (KLR) (16 February 2018) (Ruling)

Khayota Sylvia Robai Sitawa v We Effect (Swedish Co-operative Centre) & 2 others [2018] eKLR

Neutral citation: [2018] KEELRC 2276 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 118 of 2016

NJ Abuodha, J

February 16, 2018

Between

KSRS

Claimant

and

We Effect (Swedish Co-operative Centre)

1st Respondent

Raoul Wallenberg Institute of Human Rights and Humanitarian Law

2nd Respondent

Josh Ousted

3rd Respondent

Ruling

1. The respondent herein filed a Notice of Motion dated 25th September, 2017 seeking that the suit against the second and third respondent be struck out with costs. The application was premised on the grounds that the court had no jurisdiction to determine the claims made against the 2nd and 3rd respodnents since the claimant was not an employee of the 2nd or 3rd respondent.

2. In support of the application, one JO swore an affidavit in which he deponed among others that he was the Head of Nairobi Office of 2nd respondent and further that the claimant was an employee of 1st respondent between 1st February, 2013 and 4th January, 2016 when her services were terminated. He further stated that prior to the claimant’s employment by the 1st respondent, she provided consultancy services to the 2nd respodnent on various periods between 2011 and 2013 the final one being from 1st Janaury, 2013 to 31st January, 2013.

3. The consultancy contracts were annexed as evidence. According to him, the claimant offered her services in her personal capacity as an independent contractual consultant. He further deponed that the contracts were subject to Swedish law and any disputes arising therefrom were to be referred to Swedish Courts of Law. He also deponed that the claimant’s attachment to the 2nd respondent was pursuant to a consultancy contract between the 1st and the 2nd respodnent.

4. The claimant therefore acted as a representative of the 1st respondent in the provision of the consultancy services but at all material time remained an employee of the 1st respodnent. Further following the termination of the consultancy contract between the 1st and 2nd respodnet, the claimant’s contract was terminated by the 1st respodnent on 4th January, 2016 on account of poor performance.

5. The claimant on her part stated in her replying affidavit that:a.That the atrocities committed against myself by the respondents took place within the jurisdiction of this honourable court and questions of law and fact arising thereof can only be responded to by the respondents jointly.b.That I was not a party to the contract between the 1st and 2nd respondents hence not able to comment on the scope and intent of the same.c.That the issues raised in my suit and the application herein can only be determined at a full trial.d.That presence of the 2nd and 3rd respondents in the suit is necessary in order to enable the honourable court to effectively and completely adjudicate upon and settle all questions involved in the suit.e.That the suit by myself and the response filed thereof clearly articulate the roles of the 2nd and 3rd respondents and their interest in the subject matter and thus liable to be called upon to answer my claim.f.That despite the fact that my employment contract is executed by the 1st respondent, I have never worked with and/or for the 1st respondent, I have no idea as to what the 1st respondent deals in, I am not in the roster or employment portal of the 1st respodnent and never represented the 1st respondent in any capacity at the 2nd respondents premises and/or before the 3rd respondent.g.That the 2nd and 3rd respondents are necessary parties to the claim herein. The 2nd respondent having been the body under whose rules and regulations my contract was hinged and within whose offices I worked whereas the 3rd respondent was my direct and only supervisor.h.That the salaries and remuneration paid to myself came directly from the 2nd respondent and the salary increment decided by the 3rd respodnent upon his “alleged” assessment of my work.i.That all issues between the parties herein arose within the 2nd respondents premises and were perpetrated by the 3rd respondent and the evidence and answers to my claim can only be supplied by the 3rd respodnent.

6. The court has carefully reviewed the depositions by both the respondent and the claimant. The court has further reviewed documents and some correspondence exchanged between the parties herein and others. The court for instance notes the contention by the 2nd respondent that it had a consultancy agreement with the 1st respondent and the claimant herein represented the 1st respondent. The claimant on her part is of the view that though described as a consultant by the 2nd respondent she was actually an employee of the 2nd respondent.

7. The claimant further contends that the 3rd respondent once represented to her that she had been hired as a programme assistant by the 2nd respondent and that her contract had been sent to Sweden for approval. The court further takes note of the letter dated 21st August, 2015 in which the 2nd respondent writes to confirm that the claimant was its member of staff and was employed since January, 2013 as a full-time Programme Assistant with the 2nd respondent’s office in Nairobi.

8. From the foregoing it would seem that there may have been a close relationship between the 2nd respondent and the claimant which made her believe that she was in fact the 2nd respondent’s employee. In cases where it is unclear if the relationship between the parties is one of contract for services (independent contractor) or a contract of service, it is not safe to decide the issue through summary procedure.

9. The proper way would be to subject the issue to a full trial where parties can be subjected to cross-examination and evidence presented to support either party’s position. Considerable inconvenience may be occasioned to a party by being retained in a suit where they think they should not be, but the bigger interest of justice makes it necessary that they suffer this little inconvenience to enable the court get the complete picture and evidence to determine the dispute finally. It might occasion delay and waste of judicial time to remove a party from a suit in circumstances where it is not very clear if they should be removed only to realize later that such a party ought to have been retained in the suit. In any event, costs can adequately compensate a party found to have been wrongly joined.

10. Concerning the 3rd respondent, it would seem undisputed that he was an employee of the 2nd respodnent hence any actions or decisions taken were in the course of his employment by the 2nd respondent. The claimant has not demonstrated that there is anything he did to make him personally liable for actions he took in the course of his employment. The court therefore removes the 3rd respondent from these proceeding.

11. Regarding the issue of applicable law, if the court finds that there was indeed an employer –employee relationship between the claimant and the 2nd respondent, then the issue of applicable law would not arise since this issue remains valid only if the 2nd respondent proves that the relationship between them was one for contract for services (consultancy) and not contract of service(employer-employee). The court has found that this can in the circumstances only be decided after a full trial.

12. In conclusion the application is disallowed and the suit ordered to proceed to trial on merit.

13. It is so ordered.

DATED AT NAIROBI ON THIS 16TH DAY OF FEBRUARY 2018ABUODHA J. N.JUDGEIn the presence of:-…………………………...…..........for the Claimant……………………………………. for the Respondent