[2019] KEELRC 1778 (KLR)
The court held that the proposed amendment sought to introduce substantive claims against the proposed 2nd respondent for a cause of action that accrued on 08.06.2015, which is now time barred under section 90 of the Employment Act, 2007. As such, the court lacks jurisdiction to entertain a time-barred claim, and...
Source-derived case information.
- Citation
- [2019] KEELRC 1778 (KLR)
- Parties
- Claimant: Stephen Rukunga Julius; Respondent: Mastermind Tobacco Kenya Limited
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 61 of 2018
- Procedural Posture
- Cause / Ruling on Preliminary Objection to Amendment and Joinder
- Outcome
- preliminary objection upheld; amendment and joinder denied
- Judges
- B Ongaya
- Legal Topics
- Limitation of Actions, Joinder of Parties, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Rukunga Julius
Claimant
Mastermind Tobacco Kenya Limited
Respondent
Procedural Posture
Cause / Ruling on Preliminary Objection to Amendment and Joinder
Legal Issues
- 1 Whether the proposed amendment to enjoin NMG Company as 2nd respondent is time barred under section 90 of the Employment Act, 2007.
- 2 Whether the court has jurisdiction to allow an amendment introducing a time-barred cause of action.
- 3 Whether third party proceedings are available as an alternative to joinder.
Ratio Decidendi
The court held that the proposed amendment sought to introduce substantive claims against the proposed 2nd respondent for a cause of action that accrued on 08.06.2015, which is now time barred under section 90 of the Employment Act, 2007. As such, the court lacks jurisdiction to entertain a time-barred claim, and allowing the amendment would be irregular. The preliminary objection was therefore upheld. The court further noted that if the respondent claims the real employer was the proposed 2nd respondent, third party proceedings are available to achieve justice, but joinder through amendment is not permissible in these circumstances.
Court Disposition
preliminary objection upheld; amendment and joinder denied
Orders
- Each party to bear own costs of the objection and the motion.
- Parties to take directions towards the expeditious hearing and determination of the suit.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT OF KENYA AT NAIROBI
CAUSE NO. 61 OF 2018
STEPHEN RUKUNGA JULIUS..........................................................CLAIMANT
VERSUS
MASTERMIND TOBACCO KENYA LIMITED........................RESPONDENT
(Before Hon. Justice Byram Ongaya on Friday 3rd May, 2019)
RULING
The claimant filed on 27. 02. 2019 the notice of motion seeking to amend the memorandum of claim and if successful, NMG Company would be enjoined as the 2nd respondent. Namada & Company Advocates appeared for the claimant.
The proposed 2nd respondent has filed a preliminary objection on 19. 03. 2019 through Ataka, Kimori & Okoth Advocates. The objection is that the cause of action against the proposed 2nd respondent arose on 08. 06. 2015 which is currently over 3 years and the cause of action would be time barred under the 3 years of limitation in section 90 of the Employment Act, 2007.
The claimant has filed the replying affidavit of Namada Simoni Advocate and submissions to oppose the preliminary Objection. The claimant’s case is that the suit was filed on 01. 10. 2015 being 5 days from the date of the cause of action being 08. 06. 2015. The claimant’s further case is that the respondent has pleaded that the proposed 2nd respondent was the main employer and it is therefore necessary to enjoin the proposed 2nd respondent in terms of Order 1 Rule 10(2) of the Civil Procedure Rules for the effectual and complete adjudication of the suit.
The Court has perused the proposed amended claim and it seeks to make substantive claims and prayers against the proposed 2nd respondent for the cause of action which undisputedly accrued on 08. 06. 2015. The Court returns that as submitted for the proposed 2nd respondent, an amendment to introduce a time barred cause of action against the proposed 2nd respondent would be irreparably irregular as the Court would lack jurisdiction to entertain such time barred action. The preliminary objection will therefore succeed.
The Court has considered the respondent’s claim that the real employer was the proposed 2nd respondent and considers that third party proceedings would in that case be available to meet ends of justice and in that view, each party will bear own costs of the preliminary objection.
In conclusion the preliminary objection is upheld with the consequence that the notice of motion dated 22. 02. 2019 and filed 27. 02. 2019 is determined accordingly and with orders:
a) each party to bear own costs of the objection and the motion; and
b) parties to take directions towards the expeditious hearing and determination of the suit.
Signed, datedanddeliveredin court atNairobithisFriday 3rd May, 2019.
BYRAM ONGAYA
JUDGE