Stephen Ndolo & 21 others v Toyo Construction Company Limited & Giefcon Ltd [2017] KEELRC 1915 (KLR)

REPUBLIC KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT

AT MOMBASA

CAUSE NO 136 OF 2016

STEPHEN NDOLO AND 21 OTHERS …………………………CLAIMANTS

VERSUS

TOYO CONSTRUCTION COMPANY LIMITED ……… 1ST RESPONDENTS

GIEFCON LTD…………………………..……………… 2ND RESPONDENTS

RULING

Introduction

1. The claimants brought this suit on 18. 2.2016 claiming terminal dues plus compensation unfair termination from the respondents. According to the claimants, they were employed by the 1st respondent through the 2nd respondent acting as her agent.

2. The first respondent has denied the existence of any employment relationship between the claimants and herself and has brought the Notice of Motion dated 18. 8.2016 seeking for striking out of the suit against her. According to her, the claimants were employees of the 2nd respondent who was an independent contractor engaged by her under a Manpower Supply Contract dated 27. 7.2012.

3. The 2nd respondent has admitted that the claimants were her employees and not employees of the 1st respondent and as such she did not oppose the notice of motion by the 1st respondent. The claimants have however opposed the motion vide their replying affidavit of Stephen Ndolo sworn on 4. 10. 2016. According to the claimants, the 1st respondent is liable to compensate and pay the dues sought by the claimants at common law.

Analysis and determination

4. After careful consideration of the pleadings, motion, rival affidavits and submissions filed, it is clear that the claimants were employed by the 2nd respondent and not the 1st respondent; that their payslips and termination letters were from the 2nd Respondent who also used to pay their NSSF contributions as employer code NO. 506427. The issue for determination is whether the pleadings brought by the claimants establishes any reasonable cause against the 1st Respondent.

Reasonable cause

5. There is no doubt that the claimants were employed by the 2nd Respondent to provide labour to the 1st Respondent. The claimants case is that the 2nd Respondent acted as the 1st Respondent’s agents when she recruited them to work at the 1st Respondent’s premises. No evidence has, however, been adduced to prove that agency relationship. Consequently, I agree with the respondents’ contention that the claimants were employees of the 2nd respondent who was engaged to provide labour to the 1st Respondent as independent contractor under a manpower supply agreement. There was therefore no privity of contract between the claimants and the 1st Respondent nor were they employed pursuant to any agency relationship between the two Respondents herein. The claimants cannot therefore enforce their contract with their 2nd Respondent against the 1st Respondent and as such the answer to the question for determination therefore in the negative.

Disposition

6. For the reasons stated above the suit herein is stuck out in as far as it relates to the claims against the 1st Respondent. No orders as to costs.

Signed, dated and delivered at Mombasa this 13th day of January, 2017.

O.N. MAKAU

JUDGE