[2025] KEELRC 266 (KLR)

Kyalo v DT Dobie & Company (Kenya) Limited & 2 others (Cause E507 of 2024) [2025] KEELRC 266 (KLR) (31 January 2025) (Ruling)

Neutral citation: [2025] KEELRC 266 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E507 of 2024

AK Nzei, J

January 31, 2025

Between

John Roy Kyalo

Claimant

and

DT Dobie & Company (Kenya) Limited

1st Respondent

CFAO Mobility Kenya Limited (Formerly known as CFAO Motors Kenya Limited

2nd Respondent

CFAO SAS

3rd Respondent

Ruling

1. The Claimant sued the 1st, 2nd and the 3rd Respondents herein vide a Memorandum of Claim dated 1st July, 2024 and filed in this Court on 5th July, 2024 and sought the following reliefs against the three Respondents:-a.A declaration that the Termination of Service Agreement dated 28th March, 2023 between the Claimant and the 1st Respondent is illegal, unenforceable and a nullity.b.A declaration that the constructive termination of the Claimant’s dual employment with the First Respondent on 9th May, 2024 was unlawful, unfair and wrongful.c.A declaration that termination of the Claimant’s employment by the 2nd Respondent on purported redundancy grounds was unlawful, unfair and wrongful and in violation of Articles 41 and 47 of the Constitution of Kenya.d.A declaration that the 3rd Respondent induced breach of the Employment Contract between the Claimant and the 2nd Respondent.e.An award of Kshs.25,441,750/= as against the 1st Respondent.f.An award of Kshs.13,341,963/= as against the 2nd Respondent.g.An award of Kshs.123,193,057. 60 as against the 3rd Respondent.h.General, exemplary and punitive damages against the Respondents.i.Interest at court rates on (e), (f) and (g) above from the date of filing suit until payment in full.j.Costs of the suit.

2. Whereas the 1st and 2nd Respondents are shown to have defended the suit herein vide a statement of Response dated 30th July, 2024, the 3rd Respondent is not shown to have filed any pleadings so far. Indeed, service of summons on the 3rd Respondent, which I have gathered from the Court’s record herein is a foreign company, is the subject in the Claimant’s pending application herein dated 10th July, 2024.

3. On 9th July, 2024, the 1st and 2nd Respondents filed an evenly dated Notice of Preliminary Objection stating as follows;-“TAKE NOTICE that the 1st and 2nd Respondents herein will at or before the hearing of this suit, raise a preliminary objection to the claim against the 3rd Respondent on the ground that:- 1. Pursuant to the provisions of Section 12 of the Employment and Labour Relations Court Act, this Court lacks Jurisdiction to determine the claim between the Claimant and the 3rd Respondent for reasons that:-

a.There is no employment or any relationship between the Claimant and the 3rd Respondent.b.Between the period of 22nd December, 2020 and 30th March, 2023, the Claimant was employed by the 1st Respondent.c.Between 1st April, 2023 and 9th May, 2024, the Claimant was employed by the 2nd Respondent.d.The 3rd Respondent is a foreign company and a shareholder of the 2nd Respondent. It is a separate legal entity. 2. The statement of claim dated 1st July, 2024 as against the 3rd Respondent should be struck out with costs.”

4. On 30th July, 2024, this Court (Jacob Gakeri, J) gave directions on disposal of the preliminary objection, by way of written submissions; which both the Claimant and the 1st and 2nd Respondents duly filed. The preliminary application is before me for determination.

5. The Preliminary Objection, which I have deliberately reproduced in paragraph 3 of this Ruling, sounds like a peace of a pleading. It raises matters of fact which cannot be verified and determined by this Court without first taking evidence. It was held as follows in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd [1969] E.A. 696:-“. . . A Preliminary Objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit.”

6. A Preliminary Objection can only be taken where what is involved is a pure point of law. In a situation where what is involved is a conflict or a clash of facts, a trial must be conducted, witnesses must be called, testimonies must be given and evidence produced for assessment by the trial court and determination of the case on merit.

7. In the present case, rival and/or clashing facts have been pleaded regarding the Claimant’s employment relationship with the Respondents. The issue of whether or not there existed an employment relationship between the Claimant and the 3rd Respondent is a matter of fact, and can only be determined upon consideration of evidence presented in a trial.

8. In the Mukisa Biscuit Case (Supra), Sir Charles Newbold stated as follows:-“. . . A preliminary objection is in the nature of what used to be called a demurrer. It raised a pure point of law, which was argued on assumption that all the other facts pleaded by the other party were correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessary increase of costs and, on occasion confuse the issue. The improper practice should stop.”

9. On the extend of this Court’s Jurisdiction and the 1st and 2nd Respondents’ assertion that this court lacks jurisdiction to determine the claim between the Claimant and the 3rd Respondent as the 3rd Respondent, a shareholder of the 2nd Respondent which had employed the Claimant between 1st April, 2023 and 9th May, 2024, it is to be noted that this Court’s Jurisdiction is not confined to employers and employees. As stated by the Court of Appeal in the case of Paramount Bank Limited – vs – Vaqvi Syed Qamara & Another [2017] eKLR:-“. . . The preamble to Employment and Labour Relations Court Act states that the Court is established to hear and determine disputes relating to “employment and labour relations” and “for connected purposes”. Among its powers under Section 12, the Court hears and determines all disputes relating to and arising out of employment and labour relations. In the exercise of that Jurisdiction, the Court has the power to award compensation or damages in any circumstances contemplated under the Act or any other written law and to grant any other appropriate relief that it may deem fit.”

10. In Hassan Magiya Kiage – vs – Attorney General and Another [2017] eKLR, the Court of Appeal, referring to its earlier decision in Stanley Mungai Muchai – vs – National Oil Corporation [2012] eKLR, stated as follows:-“The Jurisdiction of the Employment and Labour Relations Court extends to all disputes relating to employment and labour relations. Personal Jurisdiction is no longer confined to employers and employees but to all persons implicated in an employment and labour relations dispute.”

11. Could the 3rd Respondent be a person and/or legal entity likely to be implicated in the employment dispute herein.” Evidence will tell.

12. Article 162(2)(a) of the Constitution of Kenya establishes this Court and demarcates its jurisdiction to include all disputes relating to employment and labour relations. This goes far beyond employers and employees, and more often than not ropes in established doctrines and principles applicable in the law of contract.

13. Having considered submissions filed by both parties, I find no merit in the 1st and 2nd Respondents’ Preliminary Objection dated July 9, 2024, and the same is hereby dismissed with costs.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 31STDAY OF JANUARY 2025AGNES KITIKU NZEIJUDGEORDERThis Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees.AGNES KITIKU NZEIJUDGEAppearance:Mr. Kiplang’at for the ClaimantMiss Muthiani for the 1st and 2nd RespondentsNo appearance for 3rd Respondent