[2018] KEELRC 653 (KLR)
The Court found that, based on the Management Agreement and the conduct of the parties, Virgin Estate Limited provided the funds for paying the Claimant's wages, but the Respondent appeared to be the employer. However, the clauses of the Management Agreement and the statutory definition of employer under the...
Source-derived case information.
- Citation
- [2018] KEELRC 653 (KLR)
- Parties
- Claimant: Nicholas Njenga Mwangi; Respondent: Advent Valuers Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1650 of 2016
- Procedural Posture
- Employment Cause / Ruling on Application for Leave to Serve Third Party Notice
- Outcome
- Application allowed; leave granted to serve third party notice.
- Judges
- MSA Makhandia
- Legal Topics
- Third Party Procedure, Employment Relationship, Management Agreement, Definition of Employer
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Njenga Mwangi
Claimant
Advent Valuers Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Leave to Serve Third Party Notice
Legal Issues
- 1 Whether the Respondent should be granted leave to serve a third party notice upon Virgin Estate Limited.
- 2 Whether the Respondent was acting as an agent of the proposed third party in employing the Claimant.
- 3 Whether the Respondent or the proposed third party is the true employer under the Employment Act, 2007.
Ratio Decidendi
The Court found that, based on the Management Agreement and the conduct of the parties, Virgin Estate Limited provided the funds for paying the Claimant's wages, but the Respondent appeared to be the employer. However, the clauses of the Management Agreement and the statutory definition of employer under the Employment Act, 2007, justified granting leave to serve a third party notice. The Court allowed the application, enabling the Respondent to serve Virgin Estate Limited as a third party, so that the question of the true employer and ultimate liability could be properly determined in the proceedings.
Court Disposition
Application allowed; leave granted to serve third party notice.
Orders
- Leave granted to serve third party notice upon Virgin Estate Limited within 15 days, failing which the leave lapses.
- Third party at liberty to file appropriate responses within 21 days of service of third party notice.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1650 OF 2016
NICHOLAS NJENGA MWANGI...................................CLAIMANT
V
ADVENT VALUERS LIMITED.................................RESPONDENT
RULING
1. For determination is an application dated 30 April 2018 by the Respondent seeking orders
1. This Honourable Court be pleased to grant leave to serve a third party notice upon Virgin Estate Limited of P.O. Box 46246-00200 Nairobi in the Republic of Kenya a company duly incorporated in the aforesaid Republic.
2. Costs for this application be provided for.
2. Although served, the Claimant did not respond to the application or attend the Court when submissions were made on 10 July 2018.
3. The grounds advanced by the Respondent in support of the application were that it had entered into a Management Agreement with the proposed third party and that under the Agreement, it had the authority to hire and control employees on behalf of the proposed third party.
4. According to the Respondent, it was an agent of the proposed third party and that in this respect it paid the Claimant’s salaries from funds in an account belonging to the proposed third party before the relationship was terminated on 29 June 2016.
5. The Respondent attached a copy of the Management Agreement to the application.
6. The Court has perused the Agreement and more so clauses 2. 3.1, 2. 3.2, 3. 1 and 4. 4.
7. It is apparent that the proposed third party was providing the funds for paying the employees’ wages but at the same time, it appears that the Respondent was the employer.
8. In consideration of the above cited clauses and the definition of employer in section 2 of the Employment Act, 2007, the Court will allow the application and further direct that
(a) Third party notice to be served within 15 day, failure to which the leave lapses.
(b) Third party is at liberty to file any appropriate responses within 21 days of service of Third party notice.
(c) Witness Statements and documents to be filed exchanged within 21 days of service of Third Party notice
(d) Agreed Issues be filed within 45 days after filing of third party response.
Delivered, dated and signed in Nairobi on this 2nd day of November 2018.
Radido Stephen
Judge
Appearances
For Claimant Macharia Nderitu & Co. Advocates
For Respondent Ms. Feksi instructed by Anthony Burugu & Co. Advocates
Court Assistant Lindsey