[2024] KEELRC 1700 (KLR)

Nakitari v Busia Water & Sewerage Services Co Ltd & another (Cause 9 of 2023) [2024] KEELRC 1700 (KLR) (26 June 2024) (Ruling)

Neutral citation: [2024] KEELRC 1700 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Bungoma

Cause 9 of 2023

JW Keli, J

June 26, 2024

Between

Erick Nakitari

Claimant

and

Busia Water & Sewerage Services Co Ltd

1st Respondent

County Government Of Busia

2nd Respondent

Ruling

(On the Amended Preliminary Objection dated 4th September 2023 and Notice of Motion Application dated 23rd January 2024 by the 2nd Respondent/Applicant) 1. The ruling is on the Amended Preliminary Objection dated 4th September 2023 and filed on 5th October 2023 and the application by way of a Notice of Motion application by the 2nd Respondent /Applicant (herein “Applicant”) dated 23rd January 2024 brought under the provisions of Section 1, 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, seeking the orders: -Under Amended Notice of Preliminary Objection of 4/9/2023a.There exists no employment contract between the Claimant/Applicant and the 2nd Respondent and the Claimant /Applicant therefore lacks capacity to file action against the 2nd Respondent.b.The 1st Respondent /Respondent is a separate legal entity independent from the 2nd Respondent and with the mandate to sue and be sued in its own name as provided for under Section 19 of the Companies Act No. 17 of 2015. Under Notice of Motion application dated 23rd January 2024a.Spentb.The Claimant/Respondent is not an employee of the Busia County Public Service Board and no Employer-Employee relationship exists between the Claimant/Respondent and the 2nd Respondent /Applicant.c.The 1st Respondent is a separate legal entity independent from the 2nd Respondent /Applicant.d.The 2nd Respondent/Applicant name be and is hereby expunged from these proceedings for lack of privity of contract between the Claimant/Respondent and 2nd Respondent/Applicant.e.The letter of renewal of contract dated 16th June 2023 be and is hereby declared illegal, void, and unenforceable.f.Costs of this application be provided for.

2. The Notice of Motion was premised on the grounds on the face of the application and the grounds on the supporting affidavit sworn by Patricia Okello(Chief Officer- Department of Public Service Management & Administration) on the 23rd January 2024 as follows: -i.That the Claimant enjoined the 2nd Respondent in a suit involving an employer-employee relationship, which the 2nd Respondent was not privy to.ii.That the letter of employment of 30th June 2020, the Renewal of contract letter of 28th July 2023, and the letter of revocation of renewal of the contract of 28th July 2023, attest to the lapsed employment of the claimant with the 1st Respondent(PO-1).iii.that the 1st Respondent is a separate entity by dint of section 4(1) of the Busia County Water and Sewerage Services Act,2015(PO-2) and as incorporated under Section 4 and 16 of the Companies Act and independent of the 2nd Respondent and thus the 2nd Respondent ought not be enjoined in the present suit.iv.that the letter dated 16th June 2023 and the subject of the present cause of action is illegal and void abinitio hence unenforceable, for failing to comply with the legal process of recruitment of the Claimant/respondent as managing Director of the 1st Respondent in line with Section 10 of the Busia County Water and Sewerage Services Act,2015. v.That in the interest of justice the 2nd Respondent should be expunged from the proceedings to alleviate any further prejudice being occasioned to the 2nd Respondent/Applicant.

3. The application was opposed by the Claimant/Respondent who swore a replying affidavit on 23rd April 2024 and filed on 24th April 2024, stating that:-a.The 2nd Respondent is rightly enjoined according to Section 10 (1) of the Busia County Water and Sewerage Services Act,2015 as the managing Director of the 1st Respondent is appointed by the County Executive Committee member of the 2nd Respondent.b.that his reappointment letter was by the CECM of the 2nd Respondent and not the 1st Respondent(EN1) who is an equivalent to a Cabinet Secretary in the National government. That his letter of dismissal was also written by the CECM of the 2nd Respondent (EN2).c.That the 1st respondent by dint of the Water Services Regulations 2021 enacted under the Water Act, 2016, the 2nd respondent is mandated to incorporate water and sanitation limited liability companies.d.That the 2nd Respondent is also mandated to appoint a Board of Directors of the 1st Respondent, which Board was not in place at the claimant’s re-appointment(EN3) an issue to be addressed by the 2nd and 1st Respondents.e.That it is a Chief Officer the 2nd Respondent who deployed an acting CEO to replace the Claimant(EN4)and prayer 5 of the application is self-defeating as the same is an admission.f.The applicant cannot apply to be removed from the proceedings and at the same time ask the court to find a letter issued by its CECM to be declared void, illegal, and unenforceable.g.That the 2nd Respondent’s CECM backdated the letter of Revocation served on the claimant on September 18, 2023 but the same was dated July 28, 2023. h.The 2nd Respondent is at the core of the proceedings as its own CECM revoked his contract and the same was not by the 1st Respondent.i.That despite the 1st Respondent being independent, the functions of appointing its CEO are joined at the hip with the 2nd respondent.j.The applicant’s application is premature and filed with the sole aim of evading liability, and if removed, the claimant will have no case with the 1st respondent.k.That the 2nd Respondent is involved in an employer-employee relationship with both the 1st and 2nd Respondent in one way or another.

4. The Claimant opposed the Preliminary objection in his submissions dated 6th October 2023, filed in support of his application of 19th September 2023; arguing that the issues raised by the 2nd Respondent did not meet the ingredients of a Preliminary objection as there is a need to produce evidence to address issues raised by the respondents.

5. The 1st respondent did not file any documents but did not oppose either the Preliminary objection or the Application of 23rd January 2024.

Written Submissions 6. The court directed that the Preliminary Objection and application be canvassed concurrently by way of written submissions. The parties complied. The Applicant’s written submissions drawn by Egesa Wambura, the County Legal Counsel were dated 23rd January 2024. The Claimant/Respondent’s written submissions(undated) were filed by Obwoge Onsongo & Co. Advocates on 24th April 2024.

Determination Issues for determination. 7. The Applicant submitted globally in support of its Preliminary Objection arguing that the 2nd respondent should be expunged from the proceedings as there exists no employment contract between the Claimant and the 2nd Respondent as the 1st respondent is a separate legal entity independent from the 2nd Respondent and with the mandate to sue and be sued in its name.

8. The Claimant/Respondent submitted globally in objection to the application and the preliminary objection arguing that the 2nd Respondent is a necessary party to his suit as the 2nd Respondent’s CECM and Chief Officer had issued a re-appointment letter, revocation letter, and deployment letter with respective to his position and that the application is premature and the main suit ought to be heard through the production of evidence.

9. The court having perused the pleadings by the parties and their submissions was of the considered opinion that the issue placed before the court by the parties for determination to be whether the Preliminary Objection and the application are merited.

Decision 10. The court noted that both the Preliminary Objection and the Notice of Motion raise the question of whether there is an employer-employee relationship between the applicant and the claimant. The court noted that the letter of renewal of the contract was issued to the Claimant by the 2nd respondent(16th June 2023) and so was the revocation letter (28th July 2023).

11. The amended Preliminary Objection raised the question of the joinder of the party (the 2nd respondent) and alleged lack of employer-employee relationship. These are contested facts and indeed not pure questions of law as per Mukisa Biscuit Manufacturers Ltd. v West End Distributors Ltd. [1969] E.A. 696, where the Court of Appeal said:-“A Preliminary Objection is like what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.’’

12. The Notice of Motion also raised the issue of a lack of employer-employee relationship. The Court holds that the 2nd respondent/ Applicant having issued a renewal letter and later a revocation letter to the Claimant, brought itself within the dispute of employment.

13. The effect of misjoinder of non-joinder of parties is provided for by Order 1 Rule 9 of the Civil Procedure Rules, 2020, which makes it patently clear that misjoinder or non-joinder of parties cannot be a ground to defeat a suit. It provides that: “No suit shall be defeated because of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.”

14. In the upshot, the Notice of Motion dated 23rd January 2024 is dismissed for lack of merit. The amended Preliminary Objection dated 4th July 2023 is dismissed for being improper.

15. Costs of the application and Preliminary Objection to the Claimant in the cause.

16. Parties to take a hearing date in the claim.

17. It is so Ordered.

DATED, SIGNED, AND DELIVERED IN OPEN COURT AT BUNGOMA THIS 26TH DAY OF JUNE 2024. J.W. KELI,JUDGE.IN THE PRESENCE OF: -Court Assistant: Brenda2nd Respondent/Applicant: - AbsentClaimant: -Onsongo1st Respondent: Kaguya James.