[2022] KEELRC 13562 (KLR)
The court found that the Respondent had established a sufficient basis for the joinder of Chandravansh Construction as a third party. The existence of a subcontract agreement between the Respondent and the intended third party, covering the project where the Claimant was employed, demonstrated a connection to the...
Source-derived case information.
- Citation
- [2022] KEELRC 13562 (KLR)
- Parties
- Applicant: John Katiwa; Respondent: ARK Construction Company; Defendant: Chandravansh Construction
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Employment and Labour Relations Cause 2245 of 2017
- Procedural Posture
- Employment and Labour Cause / Ruling on Third Party Joinder Application
- Outcome
- Application for joinder of third party allowed.
- Judges
- L Ndolo
- Legal Topics
- Third Party Procedure, Joinder of Parties, Subcontractor Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Katiwa
Applicant
ARK Construction Company
Respondent
Chandravansh Construction
Defendant
Procedural Posture
Employment and Labour Cause / Ruling on Third Party Joinder Application
Legal Issues
- 1 Whether Chandravansh Construction should be joined as a third party in the employment dispute.
- 2 Whether the subcontractor is liable to indemnify the respondent for claims arising from its employees.
Ratio Decidendi
The court found that the Respondent had established a sufficient basis for the joinder of Chandravansh Construction as a third party. The existence of a subcontract agreement between the Respondent and the intended third party, covering the project where the Claimant was employed, demonstrated a connection to the original cause of action. The court applied the principle that third party notices should be considered liberally, and that the only requirement is conformity of the subject matter between the third party and the defendant with the original cause of action. As such, the court allowed the application for joinder, directing service of pleadings on the third party and granting the...
Court Disposition
Application for joinder of third party allowed.
Orders
- Chandravansh Construction is joined as a third party to the proceedings.
- The Claimant and Respondent are to serve their pleadings on the third party within fourteen (14) days from the date of the ruling.
Full Case Text
Judgment text and source record
25 paragraphs
Katiwa v ARK Construction Company; Chandravansh Construction (Intended Third Party) (Employment and Labour Relations Cause 2245 of 2017) [2022] KEELRC 13562 (KLR) (15 December 2022) (Ruling)
Neutral citation: [2022] KEELRC 13562 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Employment and Labour Relations Cause 2245 of 2017
L Ndolo, J
December 15, 2022
Between
John Katiwa
Claimant
and
ARK Construction Company
Respondent
and
Chandravansh Construction
Intended Third Party
Ruling
1. By its ex parte Chamber Summons dated May 4, 2022, the Respondent sought and was granted leave to issue a third party notice against Chandravansh Construction of PO Box 5502-00506.
2. The third party notice of even date, seeks joinder of Chandravansh Construction as a third party in these proceedings on the following grounds:a.That on September 15, 2015, the Respondent engaged the intended third party as a subcontractor in the Purple Haze Apartment Development Project via a subcontract agreement executed on the same date;b.That as per the agreement, it was the responsibility of the intended third party to engage its own employees, pay their salaries, take responsibility for statutory deductions and provide for insurance cover;c.That on November 13, 2017, the Claimant filed a suit against the Respondent, alleging wrongful and unfair termination of employment and claiming the sum of Kshs 315,840;d.That the Respondent, being a stranger to the claim and unaware of any employer-employee relationships and terminations between the intended third party and its employees, informed the intended third party of the claim, but the intended third party failed, refused and/or neglected to respond to the Respondent’s inquiries as to whether the Claimant was an employee of the intended third party or provide any information that could enable the Respondent to sufficiently defend the suit;e.That the intended third party is obliged to indemnify the Respondent against all of the liability incurred and/or to be incurred in defence of the suit instituted by the Claimant against the Respondent.
3. Emerging jurisprudence on the issue before the Court is to the effect that pleas on third party notices ought to be approached liberally rather than strictly. In Interactive Advertising Limited & another v Equity Bank Limited & 2 others [2016] eKLR it was restated that the only condition to be satisfied is that the subject between the third party and the defendant conforms to the original cause of action.
4. The Respondent has exhibited a subcontract executed between itself and the intended third party whose subject is the project where the Claimant is said to have been employed.
5. I am therefore satisfied that a case for joinder of Chandravansh Construction as a third party has been made. The Claimant and the Respondent are directed to serve their pleadings on the third party within the next fourteen (14) days from the date of this ruling. The third party will have 14 days after service to file its own pleadings.
6. The costs of the application will be in the cause.
7. Orders accordingly.
DELIVERED VIRTUALLY AT NAIROBI THIS 15TH DAY OF DECEMBER 2022LINNET NDOLOJUDGEAppearance:No appearance for the ClaimantMr. Kabugu for the RespondentNo appearance for the third party