https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2058

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **CAUSE NO. E586 OF 2025** *(Before Hon. Lady Justice Agnes Kitiku Nzei)* **MUSIC COPYRIGHT SOCIETY OF KENYA CLAIMANT** *VERSUS* **EZEKIEL MUTUA ..RESPONDENT** **RULING** **Background** 1. The suit herein is shown to have been filed on **20th June, 2025**, contemporaneously with a Notice of Motion dated **20th June, 2025**. The said application is shown to have been placed before the Court **(Baari, J)** under a certificate of urgency on **23rd June, 2025**. The Court certified the motion as urgent and directed, **inter-alia**, that the same be heard ***inter-partes*** before this Court on **15th July, 2025**. 2. On 15th July, 2025, Counsel for the Claimant informed this Court that he had realised that the dispute before the Court could be adjudicated by the Chief Magistrate’s Court, and that he had, on 2nd July, 2025, filed an evenly dated notice withdrawing the suit. He prayed that the suit be marked as withdrawn with no orders as to costs. 3. On his part, Counsel for the Respondent informed the Court that he had **already** filed affidavits in response to the Claimant’s said application, and that he had also filed **a defence and a Counter-claim**. That if the suit was withdrawn, the Respondent would be proceeding with his Counter-claim, which had already been served; and would ask for costs of the withdrawn suit. In rejoinder, Counsel for the Claimant submitted that the alleged Counter-claim was only a Counter-claim by name, as **no** reliefs had been sought therein against the Claimant. 4. Having heard Counsel for both parties in the suit on the issue of withdrawal of the Claimant’s suit herein, the Court made the following Orders:- **“(1) There being no dispute on the fact that the Respondent has filed a Counter-claim herein, and there being no evidence on record pointing to service of an alleged Notice of Withdrawal of the Suit herein at the time of filing the Counter-claim, the issue of whether or not the Counter-claim can stand or is properly pleaded cannot be considered at this point in time.** **(2) The Claimant, having indicated that it wishes to withdraw both the suit herein and the N.O.M dated 20th June, 2025, cannot be blocked from so doing. Consequently, the suit herein and the Notice of Motion dated 20th June, 2025 are hereby marked as withdrawn with costs to the Respondent.** **(3) The Claimant may respond to the Counter-claim within 21 days of today.** **(4) Mention on 9/10/2025 for appropriate directions.”** 1. On 9th October, 2025, the Court was informed that two applications had been filed by both parties, respectively, as follows:- 2. *The Claimant’s Notice of Motion* ***dated 18th July, 2025*** *seeking to strike out the Respondent’s Counter-claim, and* 3. *The Respondent/Counter-claimant’s application* ***dated 27th July, 2025****.* 4. The Court directed that the Claimant’s application dated **18th July, 2025 be heard first**; and fixed it for hearing on **6th November, 2025**. Those directions were, however, vacated pursuant to subsequent filing by the Respondent of an urgent application **dated 13th October, 2025** seeking, **inter-alia**, orders staying and vacating the same. The Court vacated the said orders (directions) vide its Ruling delivered herein on **14th November, 2025**; having been satisfied that the Claimant’s alleged application **(“dated 18th July, 2025”)** had not been filed (paid for) as on 9th October, 2025 when the said directions were given. 5. The application before me for determination **now** is the Respondent/Counter-claimant’s (Applicant’s) aforementioned Notice of Motion dated **27th July, 2025;** and **amended on 26th October, 2025**. 6. The following orders were sought in the application as **initially** filed: - 7. *That the application be certified urgent, and be heard* ***ex-parte*** *and on priority basis with service at the first instance thereof dispensed with.* 8. *That pending hearing and determination* ***of the application and/or suit****, the Court be pleased to grant an order to join* ***Lazarus Muli*** *and* ***Richard Sereti*** *to the suit as the 2nd and 3rd Counter/Defendants respectively; and/or the Intended Counter Defendants be deemed joined as parties to the suit, and the application be served on them.* 9. *That pending the hearing and determination of the application, the Court be pleased to issue a conservatory injunctive order restraining the 2nd and 3rd Intended Counter Defendants, their agents, proxies, servants and/or any persons claiming through them from interfering with the Counter-Defendant’s employees’ work and payment of salary, office premises, office and/or any other properties, all bank accounts, and the Counter Defendants to ensure and maintain an ambient working environment for the company employees.* 10. *That pending the hearing and determination of the* ***Application/suit****, the Honourable Court be pleased to issue an injunctive order restraining the 2nd and 3rd Intended Counter Defendants, their agents, proxies and/or any persons claiming through them from interfering with the Counter-Defendant’s employees’ work, office premises, office and/or any other properties, all bank accounts, and the Intended Counter Claimants [to] ensure and maintain an ambient working environment for the company employees.* 11. *That the Officer Commanding Station Kileleshwa and/or the Officer Commanding Division Kileleshwa area to ensure compliance with the Court’s Orders.* 12. *That costs of the application be provided for.* 13. The application was expressed to be anchored on a supporting affidavits of **Dr. Ezekiel Mutua** (the Counter-Claimant/Applicant) and a further affidavit of **Joyce Nyambura**, both shown to have been sworn on 27th July, 2025. 14. The application is shown to have been filed under a Certificate of Urgency and to have been placed before the Court’s Vacation Judge **(Stephen Radido, J – as he then was)** on 6th August, 2025. The Hon. Judge did **not** issue any interim orders, but ordered that the application be served; and that responses to the application and submissions thereon be filed within stated timelines. **Amended Notice of Motion dated 26th October, 2025** 1. The application dated 27th July, 2025 **has since been amended. There is on record an amended version of the same, shown to have been amended on 26th October, 2025**. The following orders are now being sought thereby:- 2. *That the application be certified urgent, and be heard on priority basis.* 3. *That pending hearing and determination of the* ***application/suit****, the Court be pleased to grant an order to join* ***Lazarus Muli*** *and* ***Richard Sereti*** *to this case as the 2nd and 3rd Intended Counter/Defendants.* 4. *That upon granting prayer 2 above and pending the hearing and determination of the* ***application/suit****, the Court be pleased to issue a conservatory injunctive order restraining the 2nd and 3rd Intended Counter Defendants, their agents, proxies, servants and/or any persons claiming through them from interfering with the Counter Defendant’s employees, office premises, office and/or any other properties, accounts and online platforms in order to maintain an ambient working environment for the benefit of the Counter Defendant’s membership.* 5. *That* ***upon grant of prayer 2 above,*** *and pending hearing and determination of the* ***application/suit****, the Court be pleased to issue an injunctive order restraining the 2nd and 3rd Intended Counter Defendants, their agents, proxies, and/or any persons claiming through them from threatening the Counter-Defendant’s employees, either directly and/or through online platforms and/or any other publications, in order to maintain an ambient employee working environment for the benefit of the Counter Defendant’s membership.* *4A.* ***That upon granting the prayers above, the Court be pleased to grant the Counter-Claimant leave to amend his Counter-Claim as per the attached amended draft Counter-claim****.* 1. *That costs of the application be provided for.* 2. None of the foregoing prayers was granted in the interim. 3. The amended application is expressed to be anchored on the supporting affidavits of **Dr. Ezekiel Mutua (the Applicant)** and **Joyce Nyambura**. Also on record in support of the application are the Applicant’s further affidavits sworn on 26th October, 2025 and 17th March, 2026 respectively. 4. The application is opposed vide a relying affidavit of **Joyce Nyambura** **said** to be sworn on 16th October, 2025, and a further affidavit of **Richard Sereti** sworn on 27th February, 2026. 5. Written submissions were filed by both parties for and against the application pursuant to the Court's directions in that regard. The Counter-Claimant/Applicant filed written submissions dated 27th July, 2025, 23rd January, 2026 and 17th March, 2026 respectively. The Claimant/Respondent filed written submissions dated 28th November, 2025 and 5th March, 2026 respectively. 6. I have considered all the affidavits filed by both parties and all the material placed before the Court herein. 7. The single issue for determination, in my view, is whether the Orders sought by the Respondent/Counter-Claimant **(the Applicant)** are capable of being granted. 8. First and foremost, it is worthy noting that the Claimant/Respondent’s suit herein, as instituted vide a Statement of Claim **dated 20th June, 2025,** was against the Applicant **(Dr. Ezekiel Mutua)** only. The Applicant had defended the said suit vide a Response to Statement of Claim **dated 7th July, 2025**, by which he also raised a Counter-claim against the Claimant/Respondent **(Music copyright Society of Kenya)**. 9. The Applicant has **now** filed an application seeking, ***inter-alia***, leave to amend his said Counter-claim to join **Lazarus Muli** and **Richard Sereti** as parties in his to Counter-claim herein, **which is a Counter-suit**, as the 2nd and 3rd Counter-Defendants, respectively. **A draft amended Counter-claim,** amended/dated **26th October, 2025**, is attached to the application and filed therewith. The Applicant **prays for leave to amend his Counter-claim as per the said draft Counter-claim**. **Lazarus Muli** and **Richard Sereti** are named as the 2nd and 3rd **Intended Counter Defendants** respectively. It is, therefore, apparent from the Applicant’s pleadings that upto this point, the aforenamed two persons **(Lazarus Muli** and **Richard Sereti)** are **not** parties to the suit herein. The Applicant is seeking this Court’s **leave** to amend his pleadings to enjoin them to the suit. 10. It is quite amazing that the Applicant is seeking **injunctive orders** against persons who are **NOT YET** parties to the suit herein. Prayers 3 and 4 in the amended Notice of Motion, which I find to be speculative, at least at this stage, cannot issue against persons who **are not** parties to the suit. The said prayers **(3 and 4)** must fall by the way side. A court of law cannot issue orders against persons who are **not** parties to proceedings before it. 11. On whether leave should be granted to the Applicant to amend his Counter-claim, **Rule 34 of the Employment and Labour Relations Court Procedure Rules 2024** provides as follows:- **“A party may amend pleadings before service or before the close of pleadings:** **Provided that after the close of pleadings, the party may only amend pleadings with the leave of the Court on oral or formal application, and the other party shall have a corresponding right to amend its pleadings.”** 1. As stated by the Court of Appeal in the case of **Central Bank of Kenya Ltd – vs – Trust Bank Ltd & 4 others (Civil Appeal No. 222 of 1998)**, the overriding consideration in applications for leave to amend pleadings is whether the amendments are necessary for the just determination of the controversy between the parties. The Court further stated that the policy of the law is that amendments to pleadings are to be freely allowed unless by allowing them the opposite side would be prejudiced or suffer injustice which cannot properly be compensated for in costs. 2. Further, it was stated as follows in **Eastern Bakery – vs – Castelino [1958] E.A 461**:- **“Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs.”** 1. The Applicant has brought **a formal application seeking leave to amend his Counter-claim as per the draft amended counter-claim filed with the amended application**. I have noted from the said **draft amended counter-claim** that the Applicant **intends** to seek specific orders against **Lazarus Muli** and **Richard Sereti,** whom he seeks to enjoin in the suit. It has **not** been demonstrated that the proposed amendments will prejudice either the said persons or the Claimant, as they will have a right to respond. The issue of whether or not the Applicant’s suit can stand against the said two persons is one that can **only** be determined upon trial. I will, therefore, not delve into the merit or otherwise of matters intended to be raised in the intended amended counter-claim. 2. Having said that, and having considered written submissions filed on behalf of both parties herein, the Amended Notice of Motion amended on 26th October, 2025 **partly** succeeds in the following terms:- 3. **The Counter-Claimant/Applicant is hereby granted leave to amend his Counter-claim in terms of the draft amended counter-claim dated 26th October, 2025 and filed with the Amended Notice of Motion.** 4. **An amended counter-claim shall be filed and served on all parties named therein within fourteen days of this Ruling.** 5. **Responses to the amended Counter-claim shall be filed and served within fourteen days of service.** 6. **The Counter-claim, being a counter suit, shall be fast-tracked, and shall be fixed for hearing.** 7. **Costs of the application are awarded to the Respondents in the Counter-claim, to be assessed and paid after the event.** 8. Orders accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS** **10TH DAY OF JULY, 2026** **AGNES KITIKU NZEI** **JUDGE** **ORDER** This Ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of the applicable Court fees. **AGNES KITIKU NZEI** **JUDGE** Appearance: Miss Cherotich for the Claimant/Respondent Miss Kalama for the Respondent/Applicant