[2018] KEELRC 1274 (KLR)
The court found that the application by the 3rd respondent to be removed from the suit could not be determined at this interlocutory stage because there were material factual disputes regarding the existence of an employer-employee relationship and the circumstances under which the 3rd respondent acquired the...
Source-derived case information.
- Citation
- [2018] KEELRC 1274 (KLR)
- Parties
- Claimant: Peter Okech Okoth; Respondent: Al-Meezan Exhibition Ltd; Respondent: Khelji Muhammad Idris; Respondent: Abdiazizi Yussuf
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1670 of 2014
- Procedural Posture
- Employment Cause / Ruling on Application for Removal of 3rd Respondent
- Outcome
- application dismissed with costs
- Judges
- DI Wasike
- Legal Topics
- Employer Employee Relationship, Joinder of Parties, Termination of Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Okech Okoth
Claimant
Al-Meezan Exhibition Ltd
Respondent
Khelji Muhammad Idris
Respondent
Abdiazizi Yussuf
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Removal of 3rd Respondent
Legal Issues
- 1 Whether there existed an employer-employee relationship between the claimant and the 3rd respondent.
- 2 Whether the 3rd respondent was improperly joined as a party to the suit.
Ratio Decidendi
The court found that the application by the 3rd respondent to be removed from the suit could not be determined at this interlocutory stage because there were material factual disputes regarding the existence of an employer-employee relationship and the circumstances under which the 3rd respondent acquired the premises. These issues could only be resolved at the full trial upon examination of evidence. Therefore, the court declined to order the removal of the 3rd respondent, holding that the application lacked merit and should be dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application by the 3rd respondent to be removed from the suit is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF
KENYA AT NAIROBI
CAUSE 1670 OF 2014
PETER OKECH OKOTH................................CLAIMANT
VERSUS
AL-MEEZAN –EXHIBITION LTD......1ST RESPONDENT
KHELJI MUHAMMAD IDRIS............2ND RESPONDENT
ABDIAZIZI YUSSUF.............................3RD RESPONDENT
RULING
1. By a motion dated 12th June, 2017 the 3rd respondent sought to be removed from the suit on the grounds that there existed no employer-employee relationship between the claimant and himself. According to the applicant, he acquired the premises which were business premises and were closed without any tenants or workers.
2. The claimant opposed the application and filed a replying affidavit in which he deponed on the main that he was employed in June, 2006 by the 1st respondent under proprietorship of the 2nd respondent as a cleaner. On the 8th August, the 3rd respondent locked the premises at 10. 00 a.m. and advised him that the closure was for renovation. On 9th he reported to work and was told to come back on 20th August, 2014. When he reported on 20th he was informed that he had been dismissed and when he asked for his terminal dues and benefits the 3rd respondent informed him he did not owe him anything.
3. The 3rd respondent has stated that he bought the premises which at the time of the purchase were closed and there were no tenants and workers. The claimant on the other hand has stated that the premises were owned by the 2nd respondent who presumably sold the same to the 3rd respondent. These are factual positions which can only be determined at the full trial. The court would need to ascertain the veracity or otherwise of the 3rd respondent’s assertion that the premises were closed and had no tenants and workers at the time of the purchase. The court would further want to know the terms of transfer of the undertaking from the 2nd to 3rd respondent.
4. In the circumstances, the court will not order a misjoinder of the 3rd respondent to the suit. The application is therefore found without merit and is hereby dismissed with costs.
5. It is so ordered.
Dated at Nairobi this 9th day of August, 2018
Abuodha J. N.
Judge
Delivered this 9th day of August, 2018
Abuodha J. N.
Judge
In the presence of:-
…………………………………………for the Claimant
…………………………...………….for the Respondent.