Parbat Siyani Construction Limited v Nashon Aronya Okola [2017] KEELRC 1592 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF

KENYA AT NAIROBI

APPEAL 2 OF 2016

PARBAT SIYANI CONSTRUCTION LIMITED………..……..APPELLANT

VERSUS

NASHON ARONYA OKOLA………………………...…......RESPONDENT

RULING

1. The respondent herein has objected to the jurisdiction of the court to entertain the present appeal.  The respondent contends that the suit in the lower court concerned negligence and that the finding by the lower court that there existed an employer –employee relationship between the appellant and the respondent is a matter of civil nature which belongs to the jurisdiction of the High court as an appellate court.

2. The court has not had the benefit of looking at the pleadings and the record of the lower court to enable it decide if it does indeed lack jurisdiction. However, from the framing of the memorandum of  appeal, the court  notes that one of the findings of  the trial court was  that the respondent was an employee of the  appellant.  If that be so, ex facie, the court has jurisdiction to hear that ground of appeal and either uphold or overrule the trial court.

3. The court will therefore not sustain the preliminary objection but direct that the respondent canvasses the same at the hearing of the main appeal.  The appeal shall therefore proceed to hearing on merit.

4. It is so ordered.

Dated at Nairobi this 24th day of March 2017

Abuodha J. N.

Judge

Delivered this 24th day of March 2017

In the presence of:-

………………………for the Claimant and

………………………for the Respondent.

Abuodha J. N.

Judge