Case ID:181447

Harriet Arangi Were v Nairobi Chapel & 2 others [2021] eKLR

Case Metadata

Case Number:

Cause 198 of 2020

Parties:

Harriet Arangi Were v Nairobi Chapel, NCBA Bank Kenya PLC & Oscar Muriu

Date Delivered:

16 Sep 2021

Case Class:

Civil

Court:

Employment and Labour Relations Court at Nairobi

Case Action:

Ruling

Judge(s):

Mathews Nderi Nduma

Citation:

Harriet Arangi Were v Nairobi Chapel & 2 others [2021] eKLR

Advocates:

Wamae & Allen Advocates for the 2nd respondent

Michuki and Michuki Advocates for the 1st and 3rd respondents

Akides Co. Advocates for the claimant

Court Division:

Employment and Labour Relations

County:

Nairobi

Advocates:

Wamae & Allen Advocates for the 2nd respondent

Michuki and Michuki Advocates for the 1st and 3rd respondents

Akides Co. Advocates for the claimant

History Advocates:

Both Parties Represented

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA

AT NAIROBI

CAUSE NO. 198 2020

HARRIET ARANGI WERE…..…….…..…………....….........…......CLAIMANT

VERSUS

THE NAIROBI CHAPEL...........................…………...............1

ST

RESPONDENT

NCBA BANK KENYA PLC.................................................... 2

ND

RESPONDENT

OSCAR MURIU....................................................................... 3

RD

RESPONDENT

RULING

1. The applicant in the application dated 20

th

January, 2021 seeks an order that the claimants suit be struck out for want of jurisdiction and for disclosing no reasonable cause of action against the 2

nd

respondent.

2. The application is premised on grounds 1 to 20 in the Notice of Motion and buttressed in the supporting affidavit of

Huldah Mengele

a legal officer of the 2

nd

Respondent.

3. The nub of the opposition is a Preliminary Objection raised in the Memorandum of Response to the statement of Claim dated 14

th

July, 2020 by the 2

nd

respondent that the relationship between the claimant and the 1

st

respondent and the 2

nd

respondent is purely commercial by dint of the fact that they are both account holders at the 2

nd

respondent bank. That this is not an employee employer relationship within the meaning of Article 162(2) of the Constitution as read with Section 12 of the Employment and Labour Relations Court Act, 2014. That if there are any remedies to the claimant against the 2

nd

respondent which is denied, they lie in the Banking Act and not the Employment Act, 2007, it being a banker-customer relationship.

4. The claimant opposes the Preliminary Objection and the application vide a replying affidavit sworn to on 9

th

February, 2021. She deposes that the suit arises out of the termination of her employment by the 1

st

respondent and the collusion of the 1

st

respondent with the 2

nd

respondent to deny the claimant her terminal dues vide unauthorized bank deposit reversal in the claimant’s account held with the 2

nd

respondent.

5. That the 2

nd

respondent is therefore responsible for the wrongful seizure of the claimant’s pension and ex-gratia gift by the employer.

6. That the 2

nd

respondent reversed the payment without the claimant’s consent.

7. The Court has carefully considered the Preliminary Objection vis a vis the statement of claim dated the 15

th

May, 2020. The Court has also carefully considered the extensive memoranda of Response by the 1

st

and 3

rd

respondents dated 11

th

November, 2020 and that by the 2

nd

respondent dated 4

th

June, 2020.

8.Having also considered the decision of the Court of Appeal in

Mukisa

Biscuits Manufacturing Co. Ltd

. -vs- West End Distributors Limited (1969) E.A. 696

as follows:-

“So far as I am aware, a Preliminary Objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.”

Sir Charles Newbold emphasized thus:-

“

The first matter relates to the increasing practice of raising points, which should be argued in the normal manner, quite improperly by way of Preliminary Objection. A Preliminary Objection is in a nature of what used to be a demurer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and, on occasions, confuse the issue. The improper practice should stop.” ,

9. The Court is of the considered finding that in the present matter the point raised is not a pure point of law. It is an issue of mixed facts and law and the facts themselves are in contention.

10. The suit clearly arises from an employee/employer relationship between the claimant and 1

st

respondent. The cause of action arises from an alleged wrongful and unfair constructive dismissal of the claimant by the 1

st

respondent.

11. The 2

nd

respondent is accused of wrongfully withdrawing terminal benefits due and owing to the claimant pursuant to an unlawful collusion between the 1

st

and 2

nd

respondent on the matter of terminal benefits payable to the claimant.

12

.

These facts are not common cause but have been placed in dispute by the respondents. The 2

nd

and 3

rd

respondents are necessary parties to the suit and have the responsibility to exculpate themselves from liability upon a full hearing on the merit of the suit.

13. The Court has jurisdiction to hear and determine all disputes relating to an employment and Labour relationship. This is one such case.

14. The preliminary objection raised in the statement of defence and augmented in the application lacks merit for the obvious reason that it involves determination of facts in dispute and same is dismissed with costs in the cause.

Dated and delivered at Nairobi (virtually) this 16

th

day of September, 2021.

MATHEWS N. NDUMA

JUDGE

Appearances:-

Wamae & Allen Advocates for the 2

nd

respondent

Michuki and Michuki Advocates for the 1

st

and 3

rd

respondents

Akides Co. Advocates for the claimant