Kennedy Onyango Akado v Bollore Africa Logistics (K) Ltd & Sheer Logic Management Consultants Ltd [2018] KEELRC 2364 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT MOMBASA

CAUSE NO. 587 OF 2017

BETWEEN

KENNEDY ONYANGO AKADO.............................................................................. CLAIMANT

VERSUS

1. BOLLORE AFRICA LOGISTICS (K) LTD

2. SHEER LOGIC MANAGEMENT CONSULTANTS LTD.............................RESPONDENTS

Rika J.

Court Assistant:  Benjamin Kombe

Matete Mwelese  & Company Advocates for the Claimant

Ameli Inyangu & Partners Advocates for the 1st Respondent

________________________________________________

RULING

1. The 1st Respondent filed an Application dated 29th August 2017. Supported by an Affidavit sworn by the Human Resource Manager, Jane Wairimu, on 21st August 2017, the Application seeks to have the following orders:-

a. Claim herein is struck out.

b. Alternatively, the 1st Respondent’s name is struck out from the Claim.

c. 1st Respondent is granted costs.

d. Any other, or further orders.

2. The Claimant filed his Replying Affidavit sworn on 7th November 2017, on 9th November 2017.

3. On 6th February 2018, Parties agreed to have the Application considered and determined on the strength of their Affidavits, Documents and Submissions.  They confirmed filing of their Submissions yesterday, 8th March 2018.

4.  The1st Respondent’s position is that it did not employ the Claimant.  The 1st Respondent contracted the 2nd Respondent through a contract executed on 1st July 2016, to provide labour when necessary, to the 1st Respondent.  The Claimant was an Employee of the 2nd Respondent.  The 1st Respondent is improperly sued.

5. The Claimant admits the Respondents have an agreement for provision of labour as stated by the 1st Respondent at paragraph 4 above. The Claimant however, started working for the 1st Respondent, before execution of the outsourcing agreement.  He had worked for 7 years for the 1st Respondent, before he was placed under the 2nd Respondent.

The Court Finds

6. There is prima facie evidence that the Claimant was an Employee of the 1st Respondent, even before the 1st Respondent brought in the 2nd Respondent to the workplace.

7. There are pay slips issued to the Claimant in the name of the 1st Respondent, predating the outsourcing agreement.

8.  The 1st Respondent has properly been named as a Co-Respondent.  There is material to suggest Respondents were Co-Employers. The pay slips indicate Bollore Africa Logistics (K) Limited, as a Department of Sheer Logic Management Consultants Limited.  It is necessary that the 1st Respondent is retained in the proceedings, so that the relationship between the Respondents and the Claimant, and the relationships between the Respondents, can be established.  If it is shown upon trial that the 1st Respondent was not an Employer, and has improperly been sued, the 1st Respondent will have the remedy of costs against the Claimant.

IT IS ORDERED:-

a. 1st Respondent’s Application dated 29th August 2017 is rejected with no order on the costs.

b. Parties to comply with Rule 15 of the Court Rules, and set down the main dispute for hearing.

Dated and delivered at Mombasa this 9th day of March 2018.

James Rika

Judge