[2020] KEELRC 1342 (KLR)
The Court found that the existence of an employment relationship between the Claimant and the Respondent was disputed and constituted a triable issue. As such, it was inappropriate to grant the orders sought at the interlocutory stage without a full trial to determine the proper employer and liability. The...
Source-derived case information.
- Citation
- [2020] KEELRC 1342 (KLR)
- Parties
- Applicant: Michael Omondi; Respondent: Chloride Exide Kenya Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 290 of 2019
- Procedural Posture
- Cause / Ruling on Interlocutory Application
- Outcome
- application dismissed with costs
- Judges
- MSA Makhandia
- Legal Topics
- Employment Relationship, Terminal Dues, Breach of Contract, Unfair Termination
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Omondi
Applicant
Chloride Exide Kenya Ltd
Respondent
Procedural Posture
Cause / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the Claimant was an employee of the Respondent or Battery Masters (U) Ltd.
- 2 Whether the Respondent is liable to pay the Claimant's terminal dues and provide a P9 form.
- 3 Whether the application for payment of terminal dues and provision of P9 form should be granted at the interlocutory stage.
Ratio Decidendi
The Court found that the existence of an employment relationship between the Claimant and the Respondent was disputed and constituted a triable issue. As such, it was inappropriate to grant the orders sought at the interlocutory stage without a full trial to determine the proper employer and liability. The application for payment of terminal dues and provision of a P9 form was therefore dismissed with costs, as the substantive question of employment relationship required determination at trial.
Court Disposition
application dismissed with costs
Orders
- The application filed on 7 May 2019 is dismissed with costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 290 OF 2019
MICHAEL OMONDI.......................................................................CLAIMANT
V
CHLORIDE EXIDE KENYA LTD............................................RESPONDENT
RULING
1. Michael Omondi (Claimant) was offered employment as a Solar Sales Representative through a letter dated 2 July 2013 by Chloride Exide Kenya Ltd (Respondent).
2. The contract was to lapse on 31 July 2014 and the Claimant’s duty station was Meru.
3. On 20 July 2015, the Respondent’s Sales Manager notified the Claimant of transfer to Nairobi.
4. On 22 February 2016, the Respondent’s Human Resources Manager notified the Claimant of a transfer to Kampala to take up the position of Solar Sales Representative.
5. Simultaneously with the transfer letter, Battery Masters (U) Ltd wrote to the Claimant on the same day to formally offer him the position of Solar Sales Representative.
6. On 13 January 2017, the Respondent’s Human Resources Manager under the letterhead of Battery Masters (U) Ltd notified the Claimant of his appointment as acting Country Manager.
7. The job description, however, was on the Respondent’s letterhead.
8. On 31 May 2018, the Claimant issued a notice of resignation and the resignation was accepted on the same day by the Respondents Human Resources Manager but on the letter head of Battery Masters (U) Ltd. The letter also set out the Claimant’s terminal dues.
9. The Claimant thereafter entered into discussions with the Respondent on payment of the terminal dues but no agreement was not reached as a result of which the Claimant filed these proceedings on 7 May 2019 alleging unfair termination of employment and breach of contract.
10. Filed together with the Statement of Claim was an application seeking an order compelling the Respondent to pay the Claimant’s terminal dues and to provide a P 9.
11. The main ground advanced by the Respondent in resisting the application was that the Claimant had no contractual relationship with it, but was an employee of Battery Masters (U) Ltd, and therefore the application ought to be dismissed.
12. The Court has carefully considered the employment records filed in Court together with the oral submissions and concludes that question of the employment relationship between the Claimant and the Respondent is a disputed and therefore triable issue which should be taken for trial before a determination is made as to the whether the Respondent is liable to the Claimant.
13. From the foregoing, the Court finds no merit in the application filed in Court on 7 May 2019, and orders it dismissed with costs.
Delivered, dated and signed in Nairobi on this 13th day of March 2020.
Radido Stephen
Judge
Appearances
For Claimant Mr. Okuta instructed by Okemwa & Co. Advocates
For Respondent Ms. Gachihi instructed by Kembi-Gitura & Co. Advocates
Court Assistant Judy Maina