[2022] KEELRC 860 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOURRELATIONS COURT

AT NAIROBI

CAUSE NUMBER E175 OF 2021

BETWEEN

1. DR. MARGARET MIGIRO

2. MBAABU BARINE

3. JANE CLARE MUTHONI WANYEKI

4. MASELA ACHIEMG BARAZA

5. ANNE NYAMBURA OCHANDA

6. CHRISTINE WANJA

7. NEHEMIAH MISATI BUNDI

8. IRENE BETTY SUNGU

9. MARGARET MUSUME

10. ALFRED MUTWIRI NJERU

11. CHRISTINE MAKENA GITARI

12. ELENA WANJA

13. LEAH WANGECI GACHOKA

14. BEVERLY NASAMBU KICHANA

15. ANNE NJERI MUREITHI

16. COLLINS SIMIYU MUTEKA.................................................................................CLAIMANTS

VERSUS

1. THE REGISTERED TRUSTEES OF THE NATIONAL COUNCIL OF CHURCHES OF KENYA

2. JUMUIA HOSPITALS LIMITED..........................................................................RESPONDENTS

RULING

1. In its Application dated 30th August 2021, the 1st Respondent prays the Court to strike out the Claim against the 1st Respondent.

2. The 1st Respondent states it has never been an Employer to the Claimants; it is a distinct legal entity from the 2nd Respondent; employment contracts were executed between the Claimants and the 2nd Respondent; the doctrine of privity of contract does not allow for joinder of the 1st Respondent; and the Claim against the 1st Respondent is in abuse of the process of the Court.

3. The Application is founded on the Affidavit of 1st Respondent’s General Secretary, Rev. Canon Chris Kinyanjui Kamau.

4. It is opposed through a Replying Affidavit sworn by the 5th Claimant, Anne Nyambura Ochanda on 30th September 2021.

5. Ochanda explains that the 1st Respondent was a major decision-maker on recruitment, placement, transfer, remuneration, and disciplining of the Claimants. The 1st Respondent issued job application forms to the Claimants. Employees filled the forms and handed them in to the 1st Respondent. Employment letters issued on 1st Respondent’s letterhead. Certificates of Service were issued and signed by 1st Respondent’s Human Resource Manager. Probation contracts were signed by 1st Respondent’s General- Secretary. Termination letters were signed by Rev. Canon Chris Kinyanjui Kamau. Lastly, Rev. Canon. Chris Kinyanjui Kamau wrote the Claimants upon termination, thanking them for their service to the 1st Respondent.

6. Parties agreed to have the Application considered and determined on the strength of their Affidavits and Submissions. These were confirmed to have been filed and served.

The Court Finds: -

7. There is overwhelming evidence contained in the Replying Affidavit of the 5th Claimant, to show that the 1st Respondent employed the Claimants.

8. It is difficult to see in what way, the 1st Respondent does not fit the description of the term ‘Employer,’ contained in Section 2 of the Employment Act, as expounded in Rosephine Mumbe Munyoki & 4 others v. Blue Edge Hotels Limited [Managing Soni Hotels & Apartments] & Another [2016] e-KLR.

9. The material on record indicates the Respondents, were Co-Employers. There is no reason to justify striking out of the Claim against the 1st Respondent. If by any chance the 1st Respondent has additional evidence to show it was not an Employer to the Claimants, such evidence can be adduced at the trial. There is however no reason at all, to warrant discharge of the 1st Respondent from the proceedings. Parties should endeavour to have the Claim heard in full, instead of making unnecessary and time-consuming Applications.

IT IS ORDERED: -

a. The Application by the 1st Respondent, dated 30th August 2021 is declined.

b. Costs to the Claimants.

Dated, signed and released to the Parties at Nairobi, under the Ministry of Health and Judiciary Covid-19 Guidelines, this 8th day of February 2022.

James Rika

Judge