[2020] KEELRC 500 (KLR)

REPUBLIC OF KENYA

IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT MOMBASA

CAUSE NO 301 OF 2018

OCHOLA RAYMOND OBOO......................................CLAIMANT

VS

OMAR SHARIFF ALI

YAYE SAID ATHMAN

ALI OMAR SHARIFF

HABIB OMAR SHARIFF T/A ISTIQAMA ACADEMY

AND TUITION CENTRE......................................RESPONDENTS

RULING

1. On 7th May 2018, the Claimant filed a claim against Omar Shariff Ali, Yaye Said Athman, Ali Omar Shariff and Habib Omar Shariff, all trading as Istiqama Academy and Tuition Centre.

2. The Respondents filed a Reply on 8th August 2018, together with supporting documents and a witness statement by Omar Shariff.

3. The case opened for trial on 29th July 2019 when the Claimant testified.

4. However, when the matter came up for defence hearing on 17th February 2020, the Respondents sought leave to file an application for leave to issue a third party notice.

5. By consent of the parties, the Respondents were granted leave to file their application, which they did on 6th March 2020.

6. By their application which is dated 28th February 2020, the Respondents seek leave to issue a third party notice to the following proposed third parties:

a) Juma Boma

b) Sheikh Ali Idris

c) Salma Anwar

d) Ali Hussein

7. The Respondents further seek an order to reopen the case.

8. The application is based on the following grounds:

a) That the Claimant’s claim is for compensation for alleged dismissal at Istiqama Academy;

b) That the Respondents herein had handed over the management of Istiqama Academy to new directors, who had the power to sack or retain the employees;

c) That the proposed third parties sacked the Claimant, hence this suit;

d) That in any case, if the Respondents are held liable, the proposed third parties are also liable and they therefore ought to be enjoined in this suit as third parties;

e) That the Claimant shall suffer no prejudice if the application is allowed.

9. The Claimant’s response to the application is contained in his replying affidavit sworn on 16th March 2020.

10. The Claimant raises the following procedural issues:

a) That the application is undated and unsigned;

b) That the supporting affidavit is not signed by the deponent;

c) That the Respondents have not paid to the Claimant the sum of Kshs. 35,000 agreed upon by the parties as thrown away costs.

11. The Claimant further states that the application is an afterthought and a complete abuse of the court process, which should be dismissed in the first instance, for reasons that:

a) The claim was filed on 7th May 2018 and the Respondents served on 18th May 2018;

b) The Respondents filed a response to the claim together with a witness statement on 8th August 2019, after the prescribed period of 21 days, and without leave of the Court;

c) The matter was scheduled for pre-trial on 16th October 2018 and on 22nd January 2019, on which dates the Respondents did not attend court;

d) The matter was listed for hearing on 29th July 2019 and the Respondents were duly served; on the said date the matter proceeded for hearing where the Claimant’s evidence was taken;

e) The Respondent’s case was scheduled for 13th November 2019 but the Court was not sitting; the matter was therefore adjourned to 17th February 2020, when the Respondents’ case was to be heard but the Respondents asked for an adjournment on the ground that they intended to file an application to enjoin third parties;

f) The Court granted an adjournment upon the parties’ agreement on payment of Kshs. 35,000 as thrown away costs to be paid by the Respondents to the Claimant;

12. The Claimant depones that the Respondents’ application lacks merit due to the fact that:

a) The Claimant has already closed his case and the Respondents, having heard the Claimant’s evidence, ought to proceed and present their case;

b) Pre-trial conference was held and the Respondents never indicated that they wished to enjoin third parties in the suit but sought to proceed and hear the Claimant’s case;

c) The application has been brought to court after the Respondents have heard the Claimant’s case and are out on an expedition to use available evidence on record to deny the Claimant justice, which amounts to sharp practice;

d) The intended third parties are not necessary and proper parties to the suit since they were not and are not owners of Istiqama Academy, where the Claimant provided his services as a senior teacher.

13. The Claimant maintains that liability in this case falls squarely on the Respondents as owners of the School, as there was no evidence of transfer of ownership to third parties.

14. The Claimant points out that the termination of his employment was effected by letter dated 1st December 2017, which was signed by one of the owners of the School, Omar Shariff.

15. Further, Omar Shariff had signed letter dated 10th January 2018, confirming payment of the Claimant’s salary for December 2017.

16. The Claimant’s case is that any agreement entered into between the owners of the School and the Board of Governors, had no effect on him as he was not privy to any such agreement.

17. The Claimant states that when he was employed in 2013, the School had different directors but the same owners who are the Respondents.

18. The single issue for determination in this application is whether the Respondents have made out a case for reopening of the case to allow for issuance of third party notice to proposed third parties.

19. In their written submissions filed on 1st July 2020, the Respondents make reference to Order 1 Rule 15 of the Civil Procedure Rules, 2010 which provides as follows:

15(1) Where a defendant claims as against any other person notalready a party to the suit (hereinafter called the 3rd party)-

(a) that he is entitled to contribution or indemnity; or

(b) that he is entitled to any relief or remedy relating to or connected with the original subject matter of the suit and substantially the same relief as claimed by the plaintiff; or

(c) that any question or issue relating to or connected with the said subject- matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them,

he shall apply to the Court within fourteen days after the close of pleadings for leave of the Court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers ex parte supported by affidavit.

20. From the record, pleadings in this case were closed on 8th August 2018, when the matter was certified ready for hearing.

21. The Respondents’ application was filed more than a year post close of pleadings and after the Claimant had closed his case.

22. The Respondents did not bother to provide any explanation as to why they were seeking leave to issue a third party notice at this late stage in the proceedings.

23. Moreover, the Respondents did not provide any evidence linking the proposed third parties to the Claimant’s employment or termination thereof. I say so first, because the termination letter issued to the Claimant on 1st December 2017 was signed by the 1st Respondent, Omar Shariff, in his capacity as Director.

24. Secondly, the hand over agreement between the Directors of Istaqama Academy and the Board of Governors made up of the proposed third parties was executed in January 2018, after the termination of the Claimant’s employment.

25. In light of the foregoing, I find the Respondents’ application unmeritorious and proceed to dismiss it with costs to the Claimant.

26. Orders accordingly.

DATED SIGNED AND DELIVERED AT MOMBASA THIS 17TH DAY OF SEPTEMBER 2020

LINNET NDOLO

JUDGE

ORDER

In view of restrictions in physical court operations occasioned by the COVID-19 Pandemic, this ruling has been delivered via Microsoft Teams Online Platform. A signed copy will be availed to each party upon payment of court fees.

LINNET NDOLO

JUDGE

Appearance:

Mr. Nyongesa for the Claimant

Miss Khalifa for the Respondents