[2014] KEELRC 645 (KLR)

REPUBLIC OF KENYA

IN THE INDUSTRIAL COURT OF KENYA

AT NAIROBI

CAUSE NO. 70 OF 2013

ABUBAKAR ALI SHEE ..........................................................CLAIMANT

-VERSUS-

TOURISM PROMOTION SERVICES (K) LTD. .............RESPONDENT

Mr. Isinta for Respondent/Applicant

Mr. Kigano for Claimant/Respondent

RULING

The Application dated the 20th November 2013 has been brought by the Respondent herein, Tourism Promotion Services (K) Limited, seeking Leave to have Lonrho Hotels Kenya Limited to be joined as the 2nd Respondent in this suit.

The Application is supported by an Affidavit of one Damaris Angulu the Head of Legal & Regulatory Affairs East Africa of the Respondent who states inter alia that;

“Contrary to allegations by the Claimant that he was an employee of the Respondent it is the Respondent’s defence that the Claimant’s contract of employment was with Lonrho Hotels Kenya Limited in the capacity of General Manager at Sweet Waters Tented Camp as evidenced by a Contract of Employment dated 12th March 1993 which is attached to the Application and marked “DA”.

That there has never existed a contract of employment between the Claimant and the Respondent and that the Claimant has deliberately failed to enjoin Lonrho Hotels Kenya Limited his employer and the proposed 2nd Respondent in the proceedings.

That the presence of the proposed 2nd Respondent would be vital in determining as to who is liable for the alleged breach of the Claimant’s rights.

That the Honourable Court has authority to grant leave to amend the defence and enjoin a party.

That in this regard a draft Memorandum of Reply is attached on pages 29 – 30 of the exhibit and the same should be deemed as filed.

The Claimant has filed statement of Grounds of opposition in terms of Rule 16(6) of the Industrial Court (Procedure Rule, 2010) in which it opposes the Motion in that, it is:

1. (a) an abuse of the process of Court; alternatively;

(b) not tenable;

(c) intended to delay the Court process.

2. The Claimant has no Claim or interest against the intended 2nd Respondent.

3. If the Respondent on its own has any claim or seeks indemnity against the intended 2nd Respondent then it (the Respondent) ought to issue 3rd party notice.

4. The Respondent cannot in pursuit of indemnity as aforesaid burden the Claimant with the responsibility of service and incidental costs of confirmation of its co-respondent.

The Industrial Court (procedure) Rules, 2010 do not have a provision dealing with joinder of the parties. However Order 1 Rule 3 of the Civil Procedure Rules, 2010 provides:

“All persons may be joined as defendants against whom any right or relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if such persons brought separate suits any common question of law or fact would arise.

Order I Rule 10(2) further provides:

“(2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just order .....................that the name of any person who ought to have been joined, whether as plaintiff of defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added

and

10(4) where a defendant is added or substituted the plaint shall, unless the Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the Plaint shall be served on the new defendant and, if the Court thinks fit, on the original defendants.”

The Claimant states that it has no claim whatsoever against the intended defendant. However a perusal of the Contract of Employment dated 8th February, 1993 shows that the Claimant was employed as a General Manager of Sweet Waters Tented Camp by Lonrho Hotels Kenya Limited.

The letter of termination dated 18th May 2005, is by the Group Human Resource Manager of Serena Hotels who had taken over the Sweet Waters Tented Camp as confirmed by the further letter by the Camp Human Resource Manager to the Claimant dated 14th June 2005.

The letter says “your Contract of Employment was inherited from the former managers who, on behalf of Pejeta Ranching Limited managed Sweet Waters Tented Camp.”

The Claimant is clear as against whom its claim is made and has no interest whosoever in suing the proposed defendant.

The Court agrees with the counsel, Mr. Muturi Kigano for the Claimant, that if the Respondent has any claim as against Lonrho Hotels Kenya Limited, it ought to have issued a 3rd party notice in terms of Order 1 rule 15 of the Civil Procedure Rules 2010.

In the matter of Central Kenya Limited V. Trust Bank Limited,

Court of Appeal of Kenya at Nairobi Case Number 22/98, East Africa Law Reports (2000) 2EA 365;

held thus:

“A party would be allowed to make such amendments of pleadings as were necessary for determining the real issue in controversy or avoiding a multiplicity of suits provided :

there had been no undue delay

no new or inconsistent cause of action was introduced

no vested interest or accrued Legal right was affected and

the amendment could be allowed without injustice to other side”.

In casu, the Claimant has clearly no claim against the proposed Respondent and the proposed joinder would unjustly overburden the Claimant’s suit and cause unwarranted delay in finalizing the same.

Accordingly the Application is refused with costs to the Claimant.

Dated and Delivered at Nairobi this 21st day of February, 2014.

MATHEWS N. NDUMA

PRINCIPAL JUDGE