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ELRCStruck OutMisc. Application No. 656 of 2012· [2013] KEELRC 105 (KLR)

George Orito Okuya v Vegi Vegi Restaurant [2013] KEELRC 105 (KLR)

Industrial Court of Kenya at Nairobi
1 October 2013
DMD.K. Njagi Marete
1,450 words in judgment
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The bottom line

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A Kenyan employment claim for Kshs.150,160 was struck out because the employee sued the wrong entity—suing 'Vegi Vegi Restaurant' instead of the actual employer company.

What this practically means

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Executive summary

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The claimant, an unrepresented former employee, brought a memorandum of claim dated 18th April 2012 against Vegi Vegi Restaurant alleging wrongful and unfair termination of his employment as a cook/assistant cook in October 2011 without notice and without payment of terminal dues, claiming Kshs.150,160.00 comprising one month's pay in lieu of notice, annual leave, rest days, medical expenses and compensation for unfair termination. The respondent denied the claim in toto and raised a preliminary objection that it was wrongly sued, the actual employer being Vegi Vegi 2007 Limited (later sold as a going concern and renamed Vegi Vegi Food Ltd), an entity not named in the suit. The court framed six issues but decided the first two were dispositive: Vegi Vegi 2007 Limited was not a party to the suit as instituted against Vegi Vegi Restaurant, and the claim was not made against a legal entity capable of being sued, despite the letter of employment referring to Vegi Vegi 2007 Ltd. Holding that joinder of parties must be succinct, clean and clear, and that it would be impractical to defend or execute judgment under such circumstances, the court struck out the suit for want of form and non-compliance with law and procedure, rendering the merits issues spent. Taking into account the claimant's unrepresented status, the court ordered each party to bear its own costs.

Key legal issues

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01

Whether the claim was properly instituted against Vegi Vegi Restaurant as opposed to Vegi Vegi 2007 Limited

Holding

The respondent Vegi Vegi 2007 Limited was not a party to the suit as filed; the claimant failed to sue a legal entity capable of being sued, warranting striking out

Reasoning

The suit was instituted against Vegi Vegi Restaurant, yet the employer on the documentation, including the letter of employment dated 31st July 2008, was Vegi Vegi 2007 Ltd, a company with Certificate of Incorporation No. C149053. The claimant did not demonstrate the veracity of laying and sustaining a claim against the respondent as sued. The court found joinder defective, making it impractical to defend or execute any judgment, and struck out the suit, rendering issues 3-5 spent.

p. 3

Legal principles established

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  • Joinder of parties to suits must be succinct, clear and against an entity known in law; a suit against an entity incapable of being sued is unsustainable

Court orders

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  1. 1.The suit be struck out for want of form and non-compliance with the law and procedure
  2. 2.The claim dismissed with orders that each party bears his own costs

Authorities

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Legislation

  • Employment ActTermination notice and terminal dues provisions
Jurisdiction invoked
Employment and labour relations jurisdiction of the Industrial Court of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Orito Okuya v Vegi Vegi Restaurant [2013] KEELRC 105 (KLR)", Case Analysis (2013). Misc. Application No. 656 of 2012. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/105/eng@2013-10-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.