[2013] KEELRC 565 (KLR)
The court determined that the preliminary objection raised factual issues regarding the nature of the relationship between the parties that could not be resolved on the material before the court. The court held that it was necessary to hear oral evidence and examine documentation to determine whether an employment...
Source-derived case information.
- Citation
- [2013] KEELRC 565 (KLR)
- Parties
- Claimant: William Migwi Kanyua; Respondent: Risk Solutions Insurance Brokers Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1659 of 2012
- Procedural Posture
- Employment Cause / Ruling on Preliminary Objection
- Outcome
- Preliminary objection joined to substantive dispute; matter to proceed to full hearing.
- Legal Topics
- Employment Relationship, Jurisdiction of Employment Court, Preliminary Objection, Professional Fees Vs Salary
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Migwi Kanyua
Claimant
Risk Solutions Insurance Brokers Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claimant was an employee or an independent contractor entitled to professional fees.
- 2 Whether the Industrial Court has jurisdiction to hear the dispute based on the nature of the relationship.
Ratio Decidendi
The court determined that the preliminary objection raised factual issues regarding the nature of the relationship between the parties that could not be resolved on the material before the court. The court held that it was necessary to hear oral evidence and examine documentation to determine whether an employment relationship existed, which would establish the court's jurisdiction. Accordingly, the preliminary objection was joined to the substantive dispute for determination at the full hearing.
Court Disposition
Preliminary objection joined to substantive dispute; matter to proceed to full hearing.
Orders
- The preliminary objection is joined to the substantive dispute.
- The court shall give a determination upon hearing of the dispute in full.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 1659 0F 2012
BETWEEN
WILLIAM MIGWI KANYUA…………………………………………………………………………………………..CLAIMANT
VERSUS
RISK SOLUTIONS INSURANCE BROKERS LTD………………………………………………………….RESPONDENT
Rika J
CC. Leah Muthaka
Claimant in Person
Mr. Musyoka instructed by Onesmus Githinji & Co. Advocates for the Respondent
RULING
The Respondent has raised a preliminary challenge on the jurisdiction of the Court. It is stated that the Claimant was not an employee of the Respondent. He seeks professional fees from the Respondent, not salary or wages. The Court’s jurisdiction is limited to disputes involving employers and employees. A claim for professional fees should have been filed in the Civil Courts. The Respondent prays the Court to strike out the Claim.
The Claimant maintains he was employed by the Respondent as an Accountant. He worked for 7 years, and was Head of the Section. He was provided with the tools of work by the Respondent. He reported to work everyday from morning to evening. It was agreed between him and the Respondent that he be paid professional fees. This was not necessarily because he was rendering professional fees.
The Court Finds and Orders:-
1. The preliminary challenge raises matters of fact, that merit further enquiry. The material on record is not sufficient for the Court to have a conclusive view, on the nature of the relationship between the parties. It would be necessary for the parties to explain their pleadings and documentation by way of oral evidence, for the Court to determine if an employment relationship exists, and consequently, if the dispute is triable by the Industrial Court under its Constitutive Act of Parliament. IT IS HEREBY ORDERED:-
(a) The Preliminary Objection is joined to the substantive dispute.
(b) The Court shall give a determination upon hearing of the dispute in full.
(c) Parties to take a suitable hearing date at the Registry.
Dated and delivered at Nairobi this 28th day of June 2013
James Rika
Judge