[2016] KEELRC 1370 (KLR)
The court found that the claimant was under a mistaken belief that Simon Musyoka Kaingo was trading as Kitui Cottages Guest House, when in fact Kitui Cottages Limited is a separate legal entity capable of being sued in its own name. Since the claimant had already sought and obtained leave to amend the claim to...
Source-derived case information.
- Citation
- [2016] KEELRC 1370 (KLR)
- Parties
- Claimant: Nicholas Wambua Ndunda; Respondent: Simon Musyoka Kaingo; Respondent: Kitui Cottages Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause Cause1992 of 2014
- Procedural Posture
- Employment Cause / Ruling on Application to Strike Out Claim Against Respondent Due to Misjoinder
- Outcome
- Simon Musyoka Kaingo struck off as a party; costs awarded to him; claim continues against Kitui Cottages Limited.
- Judges
- DI Wasike
- Legal Topics
- Misjoinder of Parties, Amendment of Pleadings, Striking Out of Suit, Corporate Personality
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nicholas Wambua Ndunda
Claimant
Simon Musyoka Kaingo
Respondent
Kitui Cottages Limited
Respondent
Procedural Posture
Employment Cause / Ruling on Application to Strike Out Claim Against Respondent Due to Misjoinder
Legal Issues
- 1 Whether the claim against Simon Musyoka Kaingo should be struck out due to misjoinder.
- 2 Whether the proper party to the suit is Kitui Cottages Limited, a separate legal entity.
- 3 Whether striking out the entire claim is warranted or if amendment and substitution of parties is appropriate.
Ratio Decidendi
The court found that the claimant was under a mistaken belief that Simon Musyoka Kaingo was trading as Kitui Cottages Guest House, when in fact Kitui Cottages Limited is a separate legal entity capable of being sued in its own name. Since the claimant had already sought and obtained leave to amend the claim to include Kitui Cottages Limited as a respondent, the proper course was not to strike out the entire claim but to strike out Simon Musyoka Kaingo as a party. The court emphasized that striking out pleadings is a drastic remedy reserved for exceptional cases and that misjoinder can be cured by removing the unnecessary party and awarding costs, rather than dismissing the claim on a...
Court Disposition
Simon Musyoka Kaingo struck off as a party; costs awarded to him; claim continues against Kitui Cottages Limited.
Orders
- Mr. Simon Musyoka Kaingo is struck off this suit.
- Costs are awarded to Mr. Simon Musyoka Kaingo.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
CAUSE NUMBER 1992 OF 2014
NICHOLAS WAMBUA NDUNDA……………………………….. CLAIMANT
VERSUS
SIMON MUSYOKA KAINGO t/a
KITUI COTTAGES GUEST HOUSE ……RESPONDENT/APPLICANT
RULING
1. By a Notice of Motion dated 12th February 2015, the respondent sought an order that the claimant’s claim herein be struck out for the reason that the respondent does not trade as Kitui Cottages Guest House and that the same is separate legal entity and limited liability Company with capacity to sue and be sued. The respondent attached as “SMK 1” a copy of certificate of incorporation to vouch for this.
2. On 21st April, 2015 the claimant filed an application dated 10th April, 2015 seeking leave of Court to amend the memorandum of claim dated 7th November, 2014. The purpose of the amendment was stated to bring before the Court Kitui Cottages Limited as the 2nd respondent to enable just determination of the real questions in controversy. This application was allowed by consent of the parties on 4th June, 2015.
3. The present application in respect of which this ruling relates was filed earlier in time to the one of April 10th in respect which a consent has been reached.
4. Paragraph 2 of the statement of claim stated that the respondent is an adult of sound mind carrying on business of bar and restaurant and whose address is care of “The Manager, Kitui Cottages a Guest House”. The 3rd paragraph further stated that the respondent offered the claimant employment as guest attendant.
5. When the application of 10th April, 2015 was allowed, the reasonable thing the claimant would have done was to withdraw the suit against Simon Musyoka Kaingo.
6. It is clear from the memorandum of claim that the claimant was under the mistaken belief that Mr. Simon Musyoka Kaingo was trading as Kitui Cottages & Guest House. This has since proved wrong when his attention was brought to the fact that Kitui Cottages and Guest House was a Limited liability Company capable of being sued in its own name.
7. Striking out pleadings is very serious order to make since it denies the party affected the opportunity to prosecute to conclusion, their claim. It must only be made in exceptional cases especially where it is clear that it is the only order to make. Misjoinder of a party can be cured by striking out of the suit, the unnecessary party and awarding such party costs. Further, a Court of law can allow an amendment to pleadings even where such amendment would mean including or substituting a party. The Court must lean more towards conserving or sustaining claims presented to it to determine than dismissing the same on technicality unless that is the inevitable order to make.
8. In the circumstances, the Court will not strike out the claim herein but will order that Mr. Simon Musyoka Kaingo be struck off this suit and costs be awarded to him.
9. It is so ordered.
Dated at Nairobi this 1st day of April 2016
Abuodha J. N.
Judge
Delivered this 1st day of April 2016
In the presence of:-
……………………………………………………………for the Claimant and
………………………………………………………………for the Respondent.
Abuodha J. N.
Judge