[2014] KEELRC 1016 (KLR)
The court found that the claimants described the respondent as a limited liability company incorporated under the Companies Act, but the respondent produced evidence showing it was only a business name registered under the Business Names Act. The claimants did not challenge this evidence. As a result, the court held...
Source-derived case information.
- Citation
- [2014] KEELRC 1016 (KLR)
- Parties
- Applicant: Morris Makoba Okusa; Applicant: Wilson Muleyi Nyikuli; Applicant: Lameck Makhama Apongo; Respondent: Furmart Furnishers Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 106 of 2014
- Procedural Posture
- Employment Claim / Ruling on Preliminary Objection
- Outcome
- claim struck out for misjoinder of parties
- Legal Topics
- Wrongful Termination, Misjoinder of Parties, Business Names, Corporate Personality
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Morris Makoba Okusa
Applicant
Wilson Muleyi Nyikuli
Applicant
Lameck Makhama Apongo
Applicant
Furmart Furnishers Limited
Respondent
Procedural Posture
Employment Claim / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the claim is fatally defective due to misjoinder of parties.
- 2 Whether the respondent is properly described as a limited liability company.
Ratio Decidendi
The court found that the claimants described the respondent as a limited liability company incorporated under the Companies Act, but the respondent produced evidence showing it was only a business name registered under the Business Names Act. The claimants did not challenge this evidence. As a result, the court held that the claim was defective for misjoinder of parties, as the suit was brought against a non-existent legal entity. The court struck out the claim on this basis, but granted the claimants liberty to file a fresh claim against the correct party.
Court Disposition
claim struck out for misjoinder of parties
Orders
- The claim is struck out for misjoinder of parties.
- The claimants are at liberty to bring a fresh claim against the correct party.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT OF KENYA AT NAIROBI
CAUSE NO 106 OF 2014
MORRIS MAKOBA OKUSA...................................................1ST CLAIMANT
WILSON MULEYI NYIKULI...................................................2ND CLAIMANT
LAMECK MAKHAMA APONGO............................................3RD CLAIMANT
VS
FURMART FURNISHERS LIMITED............................................RESPONDENT
RULING
1. By a Memorandum of Claim dated 29th January and filed in Court on 30th January 2014, the Claimants have sued Furmart Furnishers Limited for wrongful termination of employment and failure to pay terminal dues. The Respondent filed a Statement of Defence on 3rd February 2014 in which it denies being a limited liability company. The Respondent subsequently filed a Notice of Motion on 12th March 2014 seeking orders to strike out the Claimants' claim.
2. The Respondent's application which is supported by the affidavit of Martin Nyoike Mwangi, is based on the ground that the Claimants' claim is brought against a limited liability company while the Respondent is a business name registered under the Business Names Act. The Claimants made no response to the Respondent's application.
3. The issue before the Court is whether the Claimants' claim is fatally defective on the basis of misjoinder of parties. Rule 4 (b) of the Industrial Court (Procedure) Rules, 2010 provides as follows:
A party who wishes to refer a dispute to the Court under any written law shall file a statement of claim setting out—
(b) the name, the physical and mailing address and the description of the
respondent;
4. In the Claimants' Memorandum of Claim filed on 30th January 2014, the Respondent is described as a 'limited liability company incorporated in the Republic of Kenya under the Companies Act.' In support of its denial of this description, the Respondent has produced a certificate of registration under the Registration of Business Names Act and the Claimants have not challenged the Respondent's position in this regard.
5. The Court therefore finds that the Claimants' claim is defective for misjoinder of parties and proceeds to strike it out on this ground. The Claimants are at liberty to bring a fresh claim against the correct party.
I make no order for costs.
DATED SIGNED AND DELIVERED IN OPEN COURT AT NAIROBI THIS 27TH DAY OF MAY 2014
LINNET NDOLO
JUDGE
In the Presence of:
......................................................................................Claimants
.......................................................................................Respondent