[2024] KEELRC 1995 (KLR)
The court held that the 2nd Respondent, as Director General and immediate supervisor of the Claimant, exercised the prerogatives of an employer and thus fell within the statutory definition of 'employer' under section 3 of the Employment Act. The absence of a direct contract of service between the Claimant and the...
Source-derived case information.
- Citation
- [2024] KEELRC 1995 (KLR)
- Parties
- Applicant: Doreen Kavenya Mutung'a; Respondent: Kenya Wildlife Service; Respondent: Dr. Erustus Kanga
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause E820 of 2023
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Joinder of 2nd Respondent
- Outcome
- preliminary objection dismissed
- Judges
- Nzioki wa Makau
- Legal Topics
- Joinder of Parties, Employer Definition, Employment Relationship, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Doreen Kavenya Mutung'a
Applicant
Kenya Wildlife Service
Respondent
Dr. Erustus Kanga
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Joinder of 2nd Respondent
Legal Issues
- 1 Whether the 2nd Respondent was properly joined as a party in the absence of a direct contract of service with the Claimant.
- 2 Whether the definition of 'employer' under section 3 of the Employment Act includes the 2nd Respondent in his capacity as Director General.
Ratio Decidendi
The court held that the 2nd Respondent, as Director General and immediate supervisor of the Claimant, exercised the prerogatives of an employer and thus fell within the statutory definition of 'employer' under section 3 of the Employment Act. The absence of a direct contract of service between the Claimant and the 2nd Respondent did not preclude his joinder, as the law contemplates liability for managers or agents who act in the capacity of employer. The preliminary objection was therefore dismissed, and the 2nd Respondent remained a proper party to the proceedings.
Court Disposition
preliminary objection dismissed
Orders
- The preliminary objection by the 2nd Respondent is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
Mutung'a v Kenya Wildlife Service & another (Cause E820 of 2023) [2024] KEELRC 1995 (KLR) (23 July 2024) (Ruling)
Neutral citation: [2024] KEELRC 1995 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause E820 of 2023
Nzioki wa Makau, J
July 23, 2024
Between
Doreen Kavenya Mutung'a
Claimant
and
Kenya Wildlife Service
1st Respondent
Dr. Erustus Kanga
2nd Respondent
Ruling
1. The Respondents raise a preliminary objection in relation to the suit by the Claimant as filed against the 2nd Respondent. They assert that there was no employee-employer relationship between the Claimant and the 2nd Respondent.
2. This matter relates to the issue of joinder. Under the Employment Act, employers are liable to be sued for their actions or inactions which lead to a cause of action. In some cases, there is room to sue the manager or factor of the company when the provisions of section 3 of the Employment Act are met. It provides as follows:-“employer” means any person, public body, firm, corporation or company who or which has entered into a contract of service to employ an individual and includes the agent, foreman, manager, or factor of such person, public body, firm, corporation or company. [Emphasis supplied]
3. That means the contract of service must have been entered into between that person or the corporation on the one hand, and the employee. In this case the contract was entered into between the Claimant and the 1st Respondent (hereafter “the Service”) on 30th November 2021. The Director General at the time was Brig. (Rtd.) Waweru. Upon his departure from the Service, it would seem the 2nd Respondent was appointed DG. It is common ground that the 2nd Respondent supervised the Claimant as her immediate boss. The 2nd Respondent is from all accounts, per the pleadings before the court, an employer for purposes of the law and is thus rightly before this Court. He cannot shy away from his own actions which demonstrate his exercise of prerogatives of an employer in the matter. He therefore is unsuccessful in getting the reprieve he seeks in the preliminary objection. Preliminary objection is dismissed albeit with no order as to costs.It is so ordered.
DATED AND DELIVERED AT KISUMU THIS 23RD DAY OF JULY 2024Nzioki wa MakauJUDGE