[2014] KEELRC 68 (KLR)
The court found that both respondents are necessary parties to the suit because the circumstances under which the grievant moved from one company to the other, and the terms thereof, were not explained. The joinder of the respondents was regularized by the court's leave to amend the claim, and both companies are...
Source-derived case information.
- Citation
- [2014] KEELRC 68 (KLR)
- Parties
- Applicant: Kenya Union of Commercial Food & Allied Workers Union; Respondent: Doshi Iron Mongers Ltd; Respondent: Cello Thermoware Ltd
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Cause 167 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objections (motions to Strike Out Suit)
- Outcome
- motions dismissed with costs
- Judges
- AN Makau
- Legal Topics
- Joinder of Parties, Locus Standi, Union Representation, Transfer of Employment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Union of Commercial Food & Allied Workers Union
Applicant
Doshi Iron Mongers Ltd
Respondent
Cello Thermoware Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objections (motions to Strike Out Suit)
Legal Issues
- 1 Whether the respondents, as separate legal entities, can be jointly sued in the same suit.
- 2 Whether the claimant union has locus standi to institute the suit on behalf of its members.
- 3 Whether the joinder of the respondents as parties is proper given the employment history of the grievant.
Ratio Decidendi
The court found that both respondents are necessary parties to the suit because the circumstances under which the grievant moved from one company to the other, and the terms thereof, were not explained. The joinder of the respondents was regularized by the court's leave to amend the claim, and both companies are related, sharing directors. On locus standi, the court held that the claimant union is entitled to institute proceedings on behalf of its members once conciliation has failed, as provided under the Labour Relations Act. Therefore, the preliminary objections raised by the respondents lacked merit and the motions to strike out the suit were dismissed.
Court Disposition
motions dismissed with costs
Orders
- The two Notices of Motion dated 29/5/2014 are dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT
AT MOMBASA
CAUSE NO. 167 OF 2014
KENYA UNION OF COMMERCIAL FOOD & ALLIED
WORKERS UNION …...................................................................CLAIMANTS
VERSUS
1DOSHI IRON MONGERS LTD
2 CELLO THERMOWARE LTD …..........................................RESPONDENTS
R U L I N G
1. The respondents have brought two separate Notices of Motion dated 29/5/2014 all of which seek the striking out of the claimant's suit. The Motions are each supported by an affidavit and the grounds set out on the body of the Motions. The main grounds upon which the Motions are premised are that the respondents are separate legal persons and should not be sued jointly; that the claimant was employed by the respondents on separate occasions; and lastly that the claimant lacks locus standi to sue the respondents.
2. The Motions are opposed vide the affidavits of Mr. John O. Owiyo sworn on 3/7/2014. The gist of the reply is that the anomally of joinder of the respondents was cured by the leave of the court given on 3/7/2014 for amendment of the claim so that the respondents are separately described as independent parties. In addition the 2 respondents are necessary parties because the circumstances under which the grievant is alleged to have been transferred from one respondent to another is not clear.
ANALYSIS AND DETERMINATION
3. Mr. Attancha held brief for Mrs. Kibe, learned counsel for the applicant in prosecuting the 2 Motions on 22/10/2014. He only relied on the grounds in the Motions and the supporting affidavit and urged the court to strike out the suit as prayed in the Motions.
4. Mr. Owiyo on the other hand submitted that the grievant was employed by the 1st Applicant by letter dated 2/2/2005 (appendix 1) but from May 2010, the 2nd respondents started paying his salary. He further submitted that a search from the Companies Registry showed that the applicants are related companies in that they share the same Directors.
5. It is not in dispute that at one time the grievant worked for either or both applicants. The circumstances under which the claimant is alleged to have moved from one company to the other and the reasons therefor or terms have not been explained. It is therefore this court's view that the two respondents should remain enjoined as parties to the suit as they are all necessary parties.
6. As regards the issue of locus standi, the court is satisfied that the claimant has the right to institute suit on behalf of her members once the dispute is not resolved through conciliation by the Minister under the Labour Relations Act. This view seems to be now a well settled principle in our jurisdiction.
DISPOSITION
For the reasons stated above, the 2 Motions dated 29/5/2014 are dismissed with costs.
Dated signed and delivered this 10th December 2014
O. N. Makau
Judge