[2025] KEELRC 869 (KLR)

Bunde v Edu Plus Africa Limited & 2 others (Cause E691 of 2022) [2025] KEELRC 869 (KLR) (13 March 2025) (Ruling)

Neutral citation: [2025] KEELRC 869 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause E691 of 2022

MN Nduma, J

March 13, 2025

Between

Joy Linda Bunde

Claimant

and

Edu Plus Africa Limited

1st Respondent

Humprey Kasembeli Muchuma

2nd Respondent

Inua Ai Solution Limited

3rd Respondent

Ruling

1. By a Notice of Motion application dated 25/9/2024, the Claimant/Applicant prays for an order: - 1. Spent

2. That the court be pleased to allow the addition of Humphrey Kasembeli Muchuma and Inua AI Solutions Limited in the suit herein as the 2nd and 3rd Respondents respectively and the statement of claim be amended accordingly.

2. The statement of claim was filed on 4th November 2022 and amended on 27/9/2024 and Respondent filed a statement of response dated 18/10/2022. The Claimant filed a reply to response to the statement of claim dated 4/10/2022 and the pleadings closed accordingly.

3. The application is premised on grounds (i) to (xiii) set out on the face of the Notice of Motion the nub of which is that the proposed 2nd Respondent had closed both the Kenya Shillings and Dollar accounts of the 1st Respondent and some of the withdrawn funds were directed to the 3rd proposed Respondent.

4. That the proposed 2nd Respondent had transferred all the employees of the 1st Respondent to the proposed 3rd respondent.

5. That the proposed 2nd Respondent also used the domain and email address of the 1st Respondent to register proposed 3rd Respondent accounts, making the proposed 3rd Respondent a subsidiary of the 1st Respondent.

6. That the proposed 2nd Respondent is the Sole Director/share holder of the 3rd proposed Respondent.

7. That these are fraudulent activities by the 2nd Respondent in his capacity as a Director and the MD of the 1st Respondent.

8. That these illegal activities are done with the sole intention of defeating this suit by rendering the 1st Respondent a shell.

9. That this application be allowed to prevent irreparable loss and damage being suffered by the Claimant/Applicant.

10. That these activities were discovered upon request by the Claimant on 17/9/2015 for the 1st Respondent Bank statement for NCBA Bank. These facts are supported by an affidavit of the Claimant sworn to in support of the application to which attachments have been placed in support of the aforesaid facts.

11. The proposed 2nd Respondent filed a replying affidavit sworn to on 16/10/2024 and deposes that the 2nd and 3rd proposed Respondent may only be joined to the suit if the Applicant demonstrates that the proposed Respondents are necessary and proper parties in terms of Order 1 RULE 1,2 & 10 of the Civil Procedure Rules. That the Applicant must also demonstrate that there is a relief flowing from her to the intended Respondent and the ultimate order or decree cannot be enforced without their presence in the matter.

12. That the Respondent is a corporate entity with a separate and distinct entity from its owners, shareholders or affiliates with the capacity to sue and be sued in its name. That the Claimant filed an amended statement of claim dated 4/11/2022 seeking the court to compel the Respondent to pay her inter alia salary arrears as at 30th July 2022 of Kshs. 13,141,140. 00.

13. That the Applicant must demonstrate an employee-employer relationship between the Claimant and proposed Respondents to succeed in the application. That the application is anchored on unsubstantiated allegations of fraudulent transition of funds from the Respondent to the proposed 3rd Respondent by the 2nd proposed Respondent.

14. That the proposed Respondents have no demonstrable legal obligation to satisfy any judgment or decree in favour of the Claimant if successful in her suit.

15. That the alleged claims relied upon by the Claimant/Applicant in this application form the basis of the pending dispute in the High Court of Kenya at Milimani HCCOMC E290 of 2022 by Joy Linda Bunder and Edu Plus Africa Limited versus Humphrey Muchuga; That the sought joinder is an overreach on the part of the Applicant to have this court adjudicate over a commercial dispute whereas the suit before it is purely an employment dispute between the Claimant and the Respondent.

16. That the application is misconceived and an abuse of the court process and it be dismissed with costs.

Determination 17. In the case of Zephin Holdings Ltd versus Mimosa Plantation Ltd, Jeremiah Mezlagaro and Ezekiel Misango Mutisya [2014] eKLR it was held that: -“a proper party is one who is impleaded in the suit and qualifies the threshold of a plaintiff or defendant under Order 1 Rule 1 and 2 respectively or as a third party or as an interested party and whose presence is necessary or relevant for the determination of the real matter in dispute or to enable the court effectively and completely adjudicate upon and settle all questions involved in the suit.”

8. Furthermore, the High Court in Eldoret case Civil Case No. 136 of 2000: Joseph Njiru Kingonri versus Robert Maina Chege and 3 others [2022] eKLR per Nambuye J. as she then was, enumerated five aspects to look at before adding a party to a suit in terms of Order 1 Rule 10(2) of the Civil Procedure Rules as follows: -a.Is it a necessary party?b.Is it a proper party?c.Is there a relief flowing from him to the Plaintiff/Claimant? andd.Will the ultimate order or decree be enforceable without the party’s participation in the proceedings?e.Is his presence necessary to enable the court to effectively and completely adjudicate upon and settle all question involved in the suit?

10. The court has carefully considered the facts deposed to by the Claimant/Applicant on the face of the Notice of Motion and supporting affidavit together with the annexes thereof including the statement of accounts of the Respondent requested by the Claimant/Applicant by a letter dated 17/9/2024 from NCBA Bank in her capacity as Director/CEO of the Respondent which statement have not been sufficiently traversed by the Respondent in the replying affidavit and the court is satisfied on a balance of probability that the movement of substantial money from the Respondent at the behest of the proposed 2nd Respondent to the proposed 3rd Respondent makes the 2nd and 3rd Respondents necessary parties within the meaning of Order 1 Rule 10(2) of the Civil Procedure Rules as elaborated by the courts in the two cases cited above.

11. Accordingly, the application has merit and is granted and the court makes the following order:1. The Claimant/Applicant is granted leave to amend the amended statement of claim in this suit and include the proposed 2nd and 3rd Respondents to the suit as prayed being Humphrey Kasembeli Muchune and Inua AI Solutions Limited respectively.2. Costs in the cause.

DATED AT NAIROBI THIS 13TH DAY OF MARCH 2025MATHEWS NDUMAJUDGEAppearance:Mr. Ochada for Claimant/ApplicantMr. Nyamwamo for RespondentMr. Kemboi – Court Assistant