[2023] KEELRC 3066 (KLR)
The court found that the Law Firm of Coulson Harney LLP was indeed on record for both Respondents and that the 2nd Respondent, properly named United Technologies Corporation, is a necessary party for the determination of the employment relationship under Section 2 of the Employment Act. The only error was the...
Source-derived case information.
- Citation
- [2023] KEELRC 3066 (KLR)
- Parties
- Applicant: Dominic Mwangi Kimemia; Respondent: Kidde – Fenwal INC; Respondent: United Technologies Corporation
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 111 of 2018
- Procedural Posture
- Employment Cause / Ruling on Application for Reinstatement and Amendment of Party Name
- Outcome
- application allowed
- Judges
- J Rika
- Legal Topics
- Joinder of Parties, Misjoinder and Nonjoinder, Employment Relationship, Parent and Subsidiary Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dominic Mwangi Kimemia
Applicant
Kidde – Fenwal INC
Respondent
United Technologies Corporation
Respondent
Procedural Posture
Employment Cause / Ruling on Application for Reinstatement and Amendment of Party Name
Legal Issues
- 1 Whether the 2nd Respondent should be reinstated as a party to the proceedings.
- 2 Whether the name of the 2nd Respondent should be amended to reflect the correct corporate entity.
- 3 Whether the Claimant's application for amendment and reinstatement is well-founded in law and fact.
Ratio Decidendi
The court found that the Law Firm of Coulson Harney LLP was indeed on record for both Respondents and that the 2nd Respondent, properly named United Technologies Corporation, is a necessary party for the determination of the employment relationship under Section 2 of the Employment Act. The only error was the inclusion of a division in the 2nd Respondent's name, which did not affect its status as a corporate entity. The court held that the orders discharging the 2nd Respondent could not be sustained, and amendment of the Statement of Claim to reflect the correct name was appropriate. The application for reinstatement and amendment was therefore well-founded in both fact and law.
Court Disposition
application allowed
Orders
- The 2nd Respondent is reinstated to the Claim as a Co-Respondent.
- The 2nd Respondent’s name is amended to read 'United Technologies Corporation.'
Full Case Text
Judgment text and source record
30 paragraphs
Kimemia v Kidde – Fenwal INC & another (Cause 111 of 2018) [2023] KEELRC 3066 (KLR) (30 November 2023) (Ruling)
Neutral citation: [2023] KEELRC 3066 (KLR)
Republic of Kenya
In the Employment and Labour Relations Court at Nairobi
Cause 111 of 2018
J Rika, J
November 30, 2023
Between
Dominic Mwangi Kimemia
Claimant
and
Kidde – Fenwal INC
1st Respondent
United Technologies Corporation Climate Control and Security
2nd Respondent
Ruling
1. On 11th July 2023, the 2nd Respondent was struck out of the proceedings, on the ground that the other Parties could not agree if the 2nd Respondent was a corporate entity.
2. Although the record indicates that the Law Firm of Coulson Harney LLP, filed Memorandum of Appearance dated 21st February 2018 for both Respondents, Mr Deya from the said Law Firm, indicated on 11th July 2023, that his Law Firm was only representing the 1st Respondent.
3. The Claimant gave evidence and closed his case on 11th July 2023. The 1st Respondent’s witness was said to reside in a different time-zone, and was scheduled to be heard on 16th November 2023 at 4. 00 p.m. Kenyan time.
4. The Claimant subsequently filed an Application dated 31st July 2023, asking for reinstatement of the 2nd Respondent to the proceedings, and grant of leave to amend the name of the 2nd Respondent, to read United Technologies Limited.
5. The Application is founded on the Affidavit of the Claimant’s Advocate, Muita Zachariah Kiplangat sworn on 31st July 2023.
6. Mr. Kiplangat explains that the Law Firm of Coulson Harney LLP, is on record for both Respondents. It has been acting for both. It was only on 11th July 2023, that the Advocates for the Respondents denied having instructions from the 2nd Respondent. The Claimant’s contract of employment was executed between him, and an entity called United Technologies Corporation. This entity is the parent company to the 1st Respondent. The Statement of Response on record is filed by both Respondents, represented by the Law Firm of Coulson Harney LLP. Striking out of the 2nd Respondent, was as a result of misrepresentations made to the Court by the Respondents’ Advocates.
7. Senior Human Resource Manager, Alan Nasuti, swore an Affidavit in reply, on 22nd September 2023. It is denied that the 2nd Respondent was struck out after the Respondents misrepresented the status of the 2nd Respondent to the Court. The Claimant was employed by the 1st Respondent as a Sales Manager. The 1st Respondent is an independent company. Previously, the 1st Respondent was a subsidiary of United Technologies Corporation in the ‘’ Climate Controls & Security’’ division. There was no entity known as ‘’United Technologies Climate Control & Security.’’ The 1st Respondent challenged joinder of the 2nd Respondent on this ground. The Court acted properly in striking out the party described as ‘’ United Technologies Climate Control & Security’’ from the proceedings. There is no merit to the Claimant’s Application.
The Court Finds: - 8. The Memorandum of Appearance dated 21st February 2018, was filed by the Law Firm Coulson Harney LLP, representing the 2 Respondents.
9. The 2nd Respondent is named as ‘’United Technologies Corporation [UTC] Climate Control & Security,’’ in the Statement of Claim, as well as in the Memorandum of Appearance and the Statement of Response.
10. Based on the explanation given by Alan Nasuti in the Replying Affidavit, the 2nd Respondent’s name is ‘’United Technologies Corporation.’’ Climate Controls & Security has been clarified to be a division within the Corporation.
11. It is confirmed that the Law Firm of Coulson Harney LLP appears for both Respondents. It has been confirmed that the 2nd Respondent is a corporate entity, the only mistake made by the Claimant, being in the inclusion of the division in which the 2nd Respondent operates, in the 2nd Respondent’s name. The 1st Respondent states it is an independent entity which employed the Claimant. It however acknowledges that it was a subsidiary of United Technologies Corporation. The Claimant wishes to pursue remedy against both the subsidiary and the parent company, and for purposes of determining who was his Employer, under Section 2 of the Employment Act, the parent company is a necessary party.
12. The Application filed by the Claimant dated 31st July 2023 is well-founded in fact and law. The orders discharging the 2nd Respondent from the proceedings cannot be sustained. The 2nd Respondent is a necessary Party to the Claim.
13. There is no reason why amendment of the Statement of Claim, should not be granted.It Is Ordered: -a.The 2nd Respondent is reinstated to the Claim, as a Co-Respondent.b.The 2nd Respondent’s name is amended to read ‘’ United Technologies Corporation.’’c.Costs in the cause.d.Hearing date for the Respondents’ case to be allocated at the Registry.
DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS, 2020, THIS 30TH DAY OF NOVEMBER 2023. JAMES RIKAJUDGE