[2016] KEELRC 1060 (KLR)
The court found that there was sufficient connection between the respondent and the intended co-respondent, as evidenced by employment contracts signed by the same individuals and the claimants' belief that the respondent was their employer. Given the serious nature of striking out pleadings, which would summarily...
Source-derived case information.
- Citation
- [2016] KEELRC 1060 (KLR)
- Parties
- Applicant: Daniel Opondo Obimbo; Applicant: Nicholas Mutua; Applicant: Bishop Hayoyo; Applicant: Festus Kitale; Applicant: Hamed Majuto; Applicant: Erick Okoth; Respondent: Abercrombie & Kent Kenya Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 2109 of 2014
- Procedural Posture
- Employment Cause / Ruling on Interlocutory Applications (amendment and Striking Out)
- Outcome
- Respondent's application to strike out the claim dismissed; claimants' application to amend the claim allowed; no order as to costs.
- Judges
- NJ Abuodha
- Legal Topics
- Joinder of Parties, Striking Out Pleadings, Employment Relationship, Redundancy, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Opondo Obimbo
Applicant
Nicholas Mutua
Applicant
Bishop Hayoyo
Applicant
Festus Kitale
Applicant
Hamed Majuto
Applicant
Erick Okoth
Applicant
Abercrombie & Kent Kenya Ltd
Respondent
Procedural Posture
Employment Cause / Ruling on Interlocutory Applications (amendment and Striking Out)
Legal Issues
- 1 Whether the claim against the respondent discloses a cause of action.
- 2 Whether the claimants should be allowed to amend their claim to join a third party as co-defendant.
- 3 Whether the respondent should be struck out as a party for lack of employment relationship.
Ratio Decidendi
The court found that there was sufficient connection between the respondent and the intended co-respondent, as evidenced by employment contracts signed by the same individuals and the claimants' belief that the respondent was their employer. Given the serious nature of striking out pleadings, which would summarily terminate the claim without a hearing on the merits, the court held that such an order should only be made in the clearest cases. The court determined that the claim was not so hopelessly incompetent as to warrant striking out and that any confusion regarding the proper employer could be addressed by allowing an amendment to join the third party. The respondent's application to...
Court Disposition
Respondent's application to strike out the claim dismissed; claimants' application to amend the claim allowed; no order as to costs.
Orders
- The respondent's application dated 3rd June, 2013 seeking striking out of the claim is dismissed.
- The claimants' application dated 7th July, 2015 seeking amendment of the claim is allowed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 2109 OF 2014
DANIEL OPONDO OBIMBO.………………………………..1ST CLAIMANT
NICHOLAS MUTUA……………………………………………2ND CLAIMANT
BISHOP HAYOYO……………………………………………..3RD CLAIMANT
FESTUS KITALE……………………………………………….4TH CLAIMANT
HAMED MAJUTO………………………………..……………..5TH CLAIMANT
ERICK OKOTH…………………………………………………6TH CLAIMANT
VERSUS
ABERCROMBIE & KENT KENYA LTD……….....…..……….RESPONDENT
RULING
1. The Court was faced with two applications, one by the claimants dated 7th July, 2015 seeking amendment of the claim herein and another dated 3rd June, 2013 seeking the striking out of the suit herein as disclosing no cause of action against the respondent.
2. The respondent contends that it never employed the claimants. According to the respondent the claimants were employees of an entity known as Abercombie & Kent Mobile Camping Limited a separate legal entity from the respondent capable of being sued in its own name.
3. The claimant on the other hand seeks the joinder of the third party company in the suit as a co-defendant.
4. Striking out pleadings is a very serious order since it technically discontinues an action without going to the merits thereof. It in essence kills a dispute summarily without hearing its cause and available defences. It is therefore an order which ought to be made sparingly and in clearest of all cases. It should be made only in cases where justice cannot be achieved through other means.
5. Further a party wrongly sued or joined in a suit can be removed by way of an amendment even if the amendments may be tantamount to bringing on board a new party. The inconvenience caused to the party wrongly sued can be adequate assuaged by an award of costs.
6. As stated in cases before and in similar situations, the Court must always lean more towards preserving a claim than killing it unless the claim is hopelessly incompetent to the extent that the cause of action never existed in the first place or the claim is caught up by limitation or issues of jurisdiction.
7. The Court has carefully considered the two competing applications. The Court has further reviewed the claim as filed together with supporting documents. The fixed period contract marked “Po-e” issued by the respondent and the contract of service issued by the intended co-respondent, that follows it were both signed by Messrs Geoffrey C. Mwangi and John Muchiri.
8. This probably explains why the respondent could have been dragged into the present litigation. There appears to have been some close connection or even infusion between the respondent and the intended co-respondent that heavily operated in the minds of the claimants to make them believe the respondent was their employer. Further, the claimants aver that they were employed by the respondent until 2nd July, 2014 when their services were verbally terminated by the respondent on account of redundancy and thereafter issued by short periodic contracts.
9. The foregoing factors considered and taking into account the considerations for striking out pleadings adumbrated above, the Court will dismiss with no order as to costs the application by the respondent seeking the striking out of the claim herein but allow the one for the claimant seeking the amendment of the claim herein. There will be no order on costs as well.
10. It is so ordered.
Dated at Nairobi this 17th day of June 2016
Abuodha Jorum Nelson
Judge
Delivered this 17th day of June 2016
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha Jorum Nelson
Judge