[2014] KEELRC 699 (KLR)
The court found that the Claimant sought to be relieved of his employment duties on the same day he signed the contract, resulting in no performance of the contract. Since there was no performance, there could be no cause of action based on the contract. The court agreed with the Respondent that a party cannot seek...
Source-derived case information.
- Citation
- [2014] KEELRC 699 (KLR)
- Parties
- Claimant: Peter Ngecu Thuo; Respondent: Green World International Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2450 of 2012
- Procedural Posture
- Employment Cause / Ruling on Preliminary Application for Dismissal
- Outcome
- suit dismissed with costs to the respondent
- Judges
- AN Makau
- Legal Topics
- Unfair Termination, Employment Contracts, Summary Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Ngecu Thuo
Claimant
Green World International Kenya Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Application for Dismissal
Legal Issues
- 1 Whether the suit is frivolous, vexatious, and an abuse of the court process.
- 2 Whether a party can claim compensation for unfair termination where the contract was not performed.
- 3 Whether the claimant satisfied the threshold under Section 45(3) of the Employment Act.
Ratio Decidendi
The court found that the Claimant sought to be relieved of his employment duties on the same day he signed the contract, resulting in no performance of the contract. Since there was no performance, there could be no cause of action based on the contract. The court agreed with the Respondent that a party cannot seek to rely on a contract he has not performed, and the Claimant did not satisfy the requirements for a claim of unfair termination under Section 45(3) of the Employment Act. Consequently, the suit was dismissed as frivolous, vexatious, and an abuse of the court process.
Court Disposition
suit dismissed with costs to the respondent
Orders
- The suit is dismissed with costs to the Respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA
AT NAIROBI
CAUSE NO. 2450 OF 2012
PETER NGECU THUO……………….……….………...............................................................................……...CLAIMANT
VERSUS
GREEN WORLD INTERNATIONAL KENYA LIMITED……………………………………………………..RESPONDENT
RULING
The Application before me seeks to have the suit dismissed for being frivolous and vexatious and an abuse of the process. The contract was signed but terminated the same day by the Claimant. He is now seeking compensation on the same.
Mr. Njuguna for the Respondent asserts that the Claimant sought to be relieved from the contract the same day. He therefore submits there was no performance and the contract ended without performance.
Mr. Nyamiaka for the Claimant opposed the Application and stated that the contract was for 2 years and that the Affidavit in support contains falsehoods. He maintained that the contract was illegally and maliciously terminated. He thus urged that the matter be heard on merits and a determination given.
In a brief reprise Mr. Njuguna stated that the claim is for unfair termination and that the Claimant has not satisfied the threshold of Section 45(3) of the Employment Act. The Claimant sought to be relieved of his employment as he had found another employment as indicated in the Defence para 4. A party cannot seek to rely on a contract he has not performed.
The Claimant sought to be relieved of duties the very day he signed the contract. The affidavit of William Su deposed to on 12th July 2013 makes that deposition. There was no performance of contract and there can be no cause of action based on it. I agree with Mr. Njuguna that a party cannot seek to rely on a contract he has not performed. The suit is dismissed with costs to the Respondent.
It is so ordered.
Dated, signed and delivered this 1st day of November 2013
Nzioki wa Makau
JUDGE