[2018] KEELRC 385 (KLR)
The court found that the 2nd Respondent, by its own admission, holds all church funds and properties and therefore satisfies the statutory test of who qualifies as an employer under section 2 of the Employment Act, 2007. This makes the 2nd Respondent a necessary and appropriate party to the proceedings, as it may be...
Source-derived case information.
- Citation
- [2018] KEELRC 385 (KLR)
- Parties
- Applicant: Patricia Ndunge Mutinda; Respondent: All Souls Cathedral, Diocese of Machakos; Respondent: Church Commissioners of Kenya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1299 of 2018
- Procedural Posture
- Cause / Ruling on Preliminary Objection/application to Strike Out
- Outcome
- Application to strike out the Amended Statement of Claim against the 2nd Respondent dismissed with costs to the Claimant.
- Judges
- MSA Makhandia
- Legal Topics
- Joinder of Parties, Employer Definition, Cause of Action, Striking Out, Necessary Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patricia Ndunge Mutinda
Applicant
All Souls Cathedral, Diocese of Machakos
Respondent
Church Commissioners of Kenya
Respondent
Procedural Posture
Cause / Ruling on Preliminary Objection/application to Strike Out
Legal Issues
- 1 Whether the 2nd Respondent is a necessary and proper party to the proceedings.
- 2 Whether there exists a reasonable cause of action against the 2nd Respondent.
- 3 Whether the Amended Statement of Claim against the 2nd Respondent should be struck out for lack of employment or contractual relationship.
Ratio Decidendi
The court found that the 2nd Respondent, by its own admission, holds all church funds and properties and therefore satisfies the statutory test of who qualifies as an employer under section 2 of the Employment Act, 2007. This makes the 2nd Respondent a necessary and appropriate party to the proceedings, as it may be required to satisfy any decree issued in favour of the Claimant. The court further held that the Claimant had disclosed a reasonable cause of action against the 2nd Respondent. Consequently, the application to strike out the Amended Statement of Claim as against the 2nd Respondent lacked merit and was dismissed with costs to the Claimant.
Court Disposition
Application to strike out the Amended Statement of Claim against the 2nd Respondent dismissed with costs to the Claimant.
Orders
- The motion dated 17 September 2018 is dismissed with costs to the Claimant.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NO. 1299 OF 2018
PATRICIA NDUNGE MUTINDA.........................................................CLAIMANT
VERSUS
ALL SOULS CATHEDRAL,DIOCESE OF MACHAKOS....1st RESPONDENT
CHURCH COMMISSIONERS OF KENYA............................2nd RESPONDENT
RULING
1. In an Amended Statement of Claim filed in Court on 3 September 2018, the Claimant included the Church Commissioners of Kenya as the 2nd Respondent.
2. In introducing the 2nd Respondent, the Claimant pleaded
2A.The 2nd Respondent is the Registered Trustee of the Anglican Church of Kenya duly appoint (sic) to hold all the Church’s funds and properties of the Anglican Church in trust, with capacity to sue or to be sued.
3. Upon service, the 2nd Respondent filed a motion dated 17 September 2018 seeking orders
1. The Claimant’s Amended Statement of Claim filed in Court on 3rd September 2018 be struck out and as a result the Claimant’s suit as against the 2nd Respondent/Applicant be dismissed with costs to the 2nd Respondent.
2. In the alternative the 2nd Respondent/Applicant’s name be struck out from the suit, and the suit against it be dismissed.
3. The costs of this suit be provided for.
4. The grounds upon which the application were anchored were that there was no employment/contractual relationship between the Claimant and the 2nd Respondent, and thus there was no nexus between the parties.
5. It was urged that the Claimant had not disclosed any reasonable cause of action against the 2nd Respondent.
6. The Claimant filed a replying affidavit in opposition to the application and also cited the case of J M M, J N G & P M W v Registered Trustees of the Anglican Church of Kenya(2016) eKLR.
7. The Court has considered all the material placed before.
8. In paragraph 3 of its Statement of Response, the 2nd Respondent admitted the description outlined by the Claimant and set out in paragraph 2 herein above, except that it denied being the Registered Trustee of the Anglican Church of Kenya.
9. In the view of the Court, the admission by the 2nd Respondent that it holds all church funds and properties satisfies the test in section 2 of the Employment Act, 2007 of who qualifies as an employer.
10. The 2nd Respondent, at least on the papers as of now may be required to satisfy any decree which may be granted in favour of the Claimant were she to succeed.
11. The 2nd Respondent is a necessary and appropriate party to these proceedings.
12. In the circumstances, the Court finds no merit in the motion dated 17 September 2018 and orders that it be dismissed with costs to the Claimant.
Delivered, dated and signed in Nairobi on this 13th day of December 2018.
Radido Stephen
Judge
Appearances
For Claimant S.K. Muendo & Co. Advocates
For 1st Respondent Weda & Co. advocates
For 2nd Respondent Tripleoklaw LLP, Advocates
Court Assistant Lindsey