Hellen Ethangatta v Co-operative University of Kenya [2021] KEELRC 1427 (KLR)
The bottom line
#A Kenyan court dismissed a worker's employment claim because she sued a university when her contract was actually with a different company, and she had to pay their legal costs.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the petition against the respondent should be struck out for want of an employment relationship or cause of action
- 2.Whether the petitioner's application to amend the petition and enjoin Agri and Co-operative Training and Consultancy Services Limited should be heard first and allowed
- 3.Whether the petitioner's counter-application was an abuse of court process
Key legal issues
#Whether an employment relationship existed between the petitioner and the respondent
No employment relationship existed; the petitioner's contract was with Agri & Co-operative Training and Consultancy (ATC), a distinct entity
The petitioner's own petition described the respondent as a public university operating ATC as its corporate arm, but the attached contract of employment dated 12th February 2019 for appointment as CEO was signed between the petitioner and the Chairman of the ATC Board of Directors. The duty station clause placed her at ATC, consistent with section 10(2)(f) of the Employment Act. The contract made no reference to the respondent as employer, so no cause of action lay against it.
Whether joinder of ATC would cure the defect
Joinder of the true employer would not cure the lapse and lack of jurisdiction over the petition as framed
The court reasoned that the defect went to the foundation of the petition - the absence of any relationship between petitioner and respondent. Amending to enjoin a third party could not transform a suit filed against the wrong party into a competent claim, and the counter-application filed after being served with a striking-out application was an abuse of process.
Whether the petitioner's counter-application was an abuse of court process
Yes - filing a joinder application instead of addressing the petition being filed against the wrong party amounted to abuse of process
After service of the striking-out application, the petitioner filed a counter-application seeking to enjoin ATC rather than confronting the fundamental defect that the petition targeted a stranger to the employment contract. The court treated this tactical response as an abuse of the court's process and dismissed the petition entirely.
Legal principles established
#- A respondent in a suit or petition must have a cause of action alleged against them; a petition premised on violation of rights must be directed at the person alleged to have denied, violated or infringed the right
- A reasonable cause of action is one with some chance of success on the allegations in the plaint
Court orders
#- 1.Application dated 2nd February, 2021 allowed
- 2.Application dated 17th March, 2021 found to be in abuse of court process
- 3.Petition dismissed
- 4.Costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations disputes (Article 162(2)(a) framework); court found no employment relationship between the parties and hence no jurisdiction
Relief refused
#Amendment of the petition and joinder of Agri & Co-operative Training and Consultancy Services Limited as respondent
The contract of employment was with a third party, not the respondent, so joinder would not cure the lack of cause of action or jurisdiction
Examination of various officers of the respondent and production of books of account and documents
The entire petition was dismissed as filed against the wrong party
Costs
Costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For the reasons set out above, Application dated 2 nd February, 2021 is hereby allowed and application dated 17 th March, 2021 found to be in abuse of court process. Petition herein is dismissed. costs to the respondent.
There must exist a cause of action against a respondent upon which the claim or petition is premised upon.
The entire contract has no reference to the respondent as an employer in any manner whatsoever. There is no relationship between the petitioner’s employment with the respondent at all.
Such is in abuse of court process.
Issues in the judgment
#The judgment records the contract as signed on 22nd February '20119', an apparent typographical error for 2019
The petitioner's name does not appear on the face of the ruling text provided; parties identified only by role
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hellen Ethangatta v Co-operative University of Kenya [2021] KEELRC 1427 (KLR)", Case Analysis (2021). Petition filed 2nd December 2020 (ELRC, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1427/eng@2021-05-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.