[2013] KEELRC 273 (KLR)
The court held that the material on record was insufficient to conclusively determine the nature of the relationship between the claimant and the respondent. The issue of whether the claimant was an employee or an agent is a substantive matter requiring evidential proof. Therefore, it is not prudent to make a final...
Source-derived case information.
- Citation
- [2013] KEELRC 273 (KLR)
- Parties
- Claimant: Samuel Oruru Okemwa; Respondent: Kenindia Assurance Co. Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 178 of 2012
- Procedural Posture
- Employment Cause / Preliminary Objection Ruling
- Outcome
- Preliminary objection not upheld at this stage; issue joined to merits for determination after full hearing.
- Judges
- J Rika
- Legal Topics
- Employment Relationship, Jurisdiction of Employment Court, Contract of Agency
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Oruru Okemwa
Claimant
Kenindia Assurance Co. Limited
Respondent
Procedural Posture
Employment Cause / Preliminary Objection Ruling
Legal Issues
- 1 Whether the claimant was an employee or an agent of the respondent.
- 2 Whether the Industrial Court has jurisdiction to hear the claim based on the nature of the relationship.
Ratio Decidendi
The court held that the material on record was insufficient to conclusively determine the nature of the relationship between the claimant and the respondent. The issue of whether the claimant was an employee or an agent is a substantive matter requiring evidential proof. Therefore, it is not prudent to make a final pronouncement on jurisdiction at the preliminary stage. The preliminary objection is thus joined to the merits of the case and will be determined after a full hearing.
Court Disposition
Preliminary objection not upheld at this stage; issue joined to merits for determination after full hearing.
Orders
- The preliminary challenge is joined to the merits of the case.
- The court shall determine the issue upon hearing the claim in full.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
Industrial Court of Kenya
Cause 178 of 2012 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
SAMUEL ORURU OKEMWA ……………………………………………………….. CLAIMANT
VERSUS
KENINDIA ASSURANCE CO. LIMITED………………………….........………RESPONDENT
RULING
1. The Respondent has raised a preliminary challenge on the jurisdiction of the Court. It is alleged that the Claimant was not an employee, but an agent of the Respondent, under a contract of agency concluded on 31st July 2004. Parties agreed to dispose of the challenge by way of written submissions.
2. The parties were advised by the Court on 15th April 2013, that the Ruling would be delivered on notice.
3. Upon reading the pleadings, and the submissions of the respective parties, the Court Finds and Orders-:
4. The question whether a person is an employer or an employee of another, requires evidential proof. The material on record is insufficient to persuade the Court to make a conclusive view on the nature of the relationship between the Claimant and the Respondent. It is necessary for the parties to avail to the Court proper evidence, to show there was or there was not, an employment relationship as defined in statute and in common law. The Court does not therefore think it is prudent to make a final pronouncement on the matter, before hearing the parties in full. On this ground, the Court Orders-:
[a] The preliminary challenge is joined to the merits of the case;
[b] The Court shall determine the issue upon hearing the Claim in full; and,
[c] No Order on the costs
Dated and delivered at Nairobi this 17th day of May 2013
James Rika
Judge
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