[2013] KEELRC 105 (KLR)

REPUBLIC OF KENYA

INDUSTRIAL COURT OF KENYA AT NAIROBI

MISC. APPLICATION NO. 656 OF 2012

(Before D.K.N.Marete)

GEORGE ORITO OKUYA……………..……………………....……………APPLICANT

VERSUS

VEGI VEGI RESTAURANT ………………………..……….…...…...….RESPONDENT

JUDGEMENT

By a Memorandum of claim dated 18th April, 2012 and filed on 20th instant, this matter was brought to court. The issue in dispute is thereincited as;

‘Wrongful and unfair termination of the Claimant’s services and failure by the Respondent to pay terminal benefits to the claimant’

The claim is

The sum of Kshs.150,160. 00 as particularized in paragraph 5 of the claim

Cost of this suit

Interest in (i) above

Any other relief as the Court may deem just

The respondent in a pleading named Respondent’s Memorandum of Response to the claimants claim denies the claim and prays that the same be dismissed with costs.

The claimant’s case is that on or about February, 2008, the respondent employed the services of the claimant as a cook at a salary of Kshs.9,000/=. He commenced employment in February and served loyally and diligently until October, 2011 when he was wrongfully and unlawfully axed without notice and neither was he paid his terminal dues as follows;

1 months payment in lieu of notice = 9,000. 00

Annual leave (5,000/30 x 21 days x 5. 5) = 12,600. 00

Rest days = 18,560. 00

Medical expenses = 2,000. 00

Compensation for unfair termination = 108,000. 00

TOTAL = 150,160. 00

The respondent in the determination of the employment failed to comply with the dictates of the Employment Act, 2007 by not issuing notice of termination and paying the terminal dues owing. It was also unprocedural and did not give reasons for termination.

The respondent denies the claim in toto. She on the onset denies that she is the party sued by the claimant and is therefore wrongly suited, and is therefore a stranger to paragraph 3 of the claim and does not admit the same.

The respondent submits that she intends to raise a preliminary objection to this suit and prays that it be struck out on grounds that the respondent is wrongly suited and not the party sued by the claimant. She further submits that the party filing the Memorandum of Response is Vegi Vegi 2007 Ltd and not Vegi Vegi Restaurant and therefore not being a party, no action is disclosed against itself. She prays that the suit be struck out.

Vegi Vegi 2007 Ltd, the answering respondent is a limited liability company and employed the claimant on 14th April, 2008 as an Assistant Cook. All dues owing including leave and untaken rest days were paid for to the claimant. On or about October, 2012,the company was sold to 3rd parties as a going concern. It changed the name to Vegi Vegi Food Ltd. The buyers took over all the assets and employees of Vegi Vegi, 2007 Ltd. The claim of termination is therefore denied and also contends that at the time of sale, the claimant was paid all his dues.

The respondent submits that the suit is totally defective and should be struck out for not disclosing any cause of action against the respondent and also for suing an entity that is not capable of suing or being sued. She further submits that the claim is brought in bad faith and light.

The matter came to court for hearing variously until the 30th April, 2012 when it was ultimately heard. Mr. Burugu, counsel for the respondent submitted that he had spared the Preliminary Objection for determination with the suit at the close of proceedings.

At the hearing, the claimant testified and submitted that the court assists in the resolution of the name of the respondent as he was issued with a document in this name at the onset of employment. He also reiterated the contents of the memorandum of claim and stood by the same.

DW1 Raju Shekabwal testified for the respondent admitted that he and his father were employees of the respondent at Vegi Vegi 2007 Ltd. He had been employed on application. He in effect reiterated two contents of the memorandum of response all the way to the sale of the company on 16th

August, 2011 and subsequent handing over in October, 2011 whereby the assets and employees were transferred to the charge of the new owners. At this moment, the claimant raised issues of termination and was given the option of taking up his terminal dues or retaining employment of which he opted for continuity. All his salary andother dues were paid on handover in October, 2011 – Appendix 11 of the defense. He is therefore not owed anything, or at all.

The issues for determination in this matter are;

Is the Respondent, Vegi Vegi, 2007 Limited a party to this suit?

Is the claim as established made and instituted against a legal entity?

If the finding on 1 and 2 above are in the affirmative, was there a termination of the claimant’s employment by the respondent?

Was the termination, if at all, at 3 above wrongful, unfair and unlawful?

Is the claimant entitled to the relief sought?

Who bears the costs of this suit?

The 1st issue for determination is also an issue raised as a preliminary objection by the respondent. This is to the extent that the respondent is wrongly suited and is not the party sued by the claim. He produces and annexes Appendix A1 to the response in which is a Certificate of Incorporation No. C149053 for Vegi Vegi Two Thousand and Seven Limited registered on 8th January, 2008. Therefore no cause of action is disclosed against the company and therefore the suit should be struck out. The suit is indeed an abuse of the process of court as the claimant has sued an entity that cannot be sued in its own name.

In answer to this, the claimant in his written submission avers that he had no access to the respondents documents and therefore could miss the full name of the respondent but in filing the suit intended that it be for Vegi Vegi, 2007 - the respondent and that this is not ground enough to deny him his right to payment of terminal benefits. He requests the court to reject this argument.

The issue seeking answers is whether indeed Vegi Vegi Two Thousand and Seven Limited is party to this suit. It is obviously not a party. This is because the suit is really instituted against Vegi Vegi Restaurant and the claimant has not in any way demonstrated the veracity of laying and sustaining a claim against the respondent as sued. The documentation presented in application and other dealings by the parties in the letter of application for employment and the actual letter of employment by the two parties appear in reference to Vegi Vegi – application letter and Vegi Vegi 2007 Ltd – bottom page 1 of the letter of employment dated 31st July, 2008. It would appear that the claimant was not articulate in his search for the identity of the respondent employer or ignored the same altogether. The Staff Personal Information, though disowned by the claimant also leads to this conclusion.

I agree with the respondent’s submission on the subject. The law is clear that joinder of parties to suits must be succinct, clean and clear. There can never be lapses and those would be unsustainable if not outrightly outlandish as a legal practice. It would be impractical to defend or even execute judgement or other orders of court under such circumstances.

The claimant having failed to institute proceedings against an entity known in law fails in his endeavor and I find as such. I therefore order that the suit be struck out for want of form and non-compliance with the law and procedure. Issue numbers 3-5 as raised are therefore spent and the only other issue for determination is one on costs at No. 6 herein. And this is the tricky bit in the circumstances. I note that the claimant was unrepresented and at all times appeared in person. I also note the confusion in his submissions on the issue of written submission whereby he initially offered to opt out of the same but subsequently indulged and offered written submissions. I wish to take this into account in making a finding on costs. The circumstances of the case dictates that each party shall bear his own costs.

I am therefore inclined to dismiss this claim with orders that each party bears his costs.

Dated, delivered and signed the 1st day of October, 2013.

D.K. Njagi Marete

JUDGE

Appearances: 1. Claimant in person. 2. Mr. Burugu instructed by Obura Mbeche& Company Advocates for the Respondent