[2017] KEELRC 1592 (KLR)
The court held that, based on the memorandum of appeal and the trial court's finding that the respondent was an employee of the appellant, it has jurisdiction to hear the appeal. The court declined to uphold the preliminary objection on jurisdiction at this stage, directing that the issue may be canvassed during the...
Source-derived case information.
- Citation
- [2017] KEELRC 1592 (KLR)
- Parties
- Appellant: Parbat Siyani Construction Limited; Respondent: Nashon Aronya Okola
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2 of 2016
- Procedural Posture
- Appeal / Ruling on Preliminary Objection
- Outcome
- Preliminary objection on jurisdiction overruled; appeal to proceed on merits.
- Judges
- DI Wasike
- Legal Topics
- Jurisdiction of Labour Court, Employer Employee Relationship, Preliminary Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Parbat Siyani Construction Limited
Appellant
Nashon Aronya Okola
Respondent
Procedural Posture
Appeal / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Employment and Labour Relations Court has jurisdiction to hear an appeal where the existence of an employer-employee relationship is in dispute.
- 2 Whether the preliminary objection on jurisdiction should be upheld or deferred to the hearing of the main appeal.
Ratio Decidendi
The court held that, based on the memorandum of appeal and the trial court's finding that the respondent was an employee of the appellant, it has jurisdiction to hear the appeal. The court declined to uphold the preliminary objection on jurisdiction at this stage, directing that the issue may be canvassed during the hearing of the main appeal. The appeal is to proceed to hearing on its merits.
Court Disposition
Preliminary objection on jurisdiction overruled; appeal to proceed on merits.
Orders
- The preliminary objection is not sustained.
- The respondent may canvass the jurisdictional issue at the hearing of the main appeal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
APPEAL 2 OF 2016
PARBAT SIYANI CONSTRUCTION LIMITED………..……..APPELLANT
VERSUS
NASHON ARONYA OKOLA………………………...…......RESPONDENT
RULING
1. The respondent herein has objected to the jurisdiction of the court to entertain the present appeal. The respondent contends that the suit in the lower court concerned negligence and that the finding by the lower court that there existed an employer –employee relationship between the appellant and the respondent is a matter of civil nature which belongs to the jurisdiction of the High court as an appellate court.
2. The court has not had the benefit of looking at the pleadings and the record of the lower court to enable it decide if it does indeed lack jurisdiction. However, from the framing of the memorandum of appeal, the court notes that one of the findings of the trial court was that the respondent was an employee of the appellant. If that be so, ex facie, the court has jurisdiction to hear that ground of appeal and either uphold or overrule the trial court.
3. The court will therefore not sustain the preliminary objection but direct that the respondent canvasses the same at the hearing of the main appeal. The appeal shall therefore proceed to hearing on merit.
4. It is so ordered.
Dated at Nairobi this 24th day of March 2017
Abuodha J. N.
Judge
Delivered this 24th day of March 2017
In the presence of:-
………………………for the Claimant and
………………………for the Respondent.
Abuodha J. N.
Judge