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ELRCDismissedNotice of Motion dated 21st February 2017 in Claim dated 27th September 2016· [2017] KEELRC 1988 (KLR)

Waithira Mbage v Hillcrest Investment Limited [2017] KEELRC 1988 (KLR)

Employment and Labour Relations Court
27 July 2017
MMM. Mbaru
1,734 words in judgment
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The bottom line

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Kenya's Employment Court declined to add two school board members to an unfair termination claim, confirming that only the employer company can be sued.

What this practically means

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Executive summary

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The claimant, employed by the respondent as Manager, Public Relations and Communications at Hillcrest International Schools, brought a Notice of Motion dated 21st February 2017 seeking leave to enjoin Edwin Kuraru (Commercial Director) and Andrew Hollas (board chairman) as 2nd and 3rd respondents and to amend her statement of claim accordingly. The application, supported by an affidavit of the claimant's father, Mbage Njuguna Ng'ang'a, alleged the two individuals orchestrated harassment, a show-cause letter and a declaration of redundancy against the claimant. The respondent opposed via grounds of opposition and submissions, arguing the intended respondents are not necessary parties and that no employer-employee relationship exists between them and the claimant as required for the court's jurisdiction under section 12 of the ELRC Act. The court, per M. Mbaru J, held that while amendments should be readily allowed under Rule 14 of the ELRC (Procedure) Rules, 2016, joinder must be refused where no specific relief is sought against the intended party and no common question of fact or law arises, applying Lucy Nungari Ngigi v National Bank of Kenya. The claimant's own affidavit confirmed the intended respondents are non-shareholder board members serving by invitation, and orders in an employment claim relate to the employer company, not individual board members. The application was declined with costs in the cause.

Key legal issues

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01

Whether the intended respondents (non-shareholder board members) are necessary parties to the employment claim

Holding

The application for joinder was declined because no relief was sought against the intended respondents and the employment dispute lies with the respondent company as employer

Reasoning

The court accepted the claimant's own affidavit averment that the intended respondents are not shareholders but only board members by invitation. Orders in the claim relate to the respondent company as employer; individuals invited to serve the business bear no responsibility, and joinder without a claim against them would not aid effectual adjudication.

p. 3
02

Whether leave to amend the pleadings should issue

Holding

Leave to amend was refused as the proposed amendment sought only to enjoin parties against whom no claim lies

Reasoning

Rule 14 of the ELRC (Procedure) Rules, 2016 permits amendments with leave after close of pleadings, and amendments should be readily allowed. However, where a party objects, the reasons must be assessed on merits; here joinder would add parties with no role in the dispute and occasion unnecessary costs.

p. 3

Legal principles established

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  • Joinder will be declined where no specific relief is sought against the intended party and there is no common question of fact or law between existing and intended parties
  • Liability in employment claims rests with the employer entity, not third parties such as non-shareholder board members

Court orders

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  1. 1.The application for joinder and amendment is declined
  2. 2.Costs in the cause

Authorities

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Legislation

  • Employment Actsection 2
  • Employment Actsection 10(6) and (7)
  • Employment and Labour Relations Court Actsection 12(3)(iii)
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 14(6)
  • Constitution of KenyaArticle 162(2)

Cases cited (4)

  • Kenya Cold Storage (1964) Ltd versus Overseas Food Services (Africa) Ltd
    [1982] eKLR
  • MWM versus MFS
    [2014] eKLR
  • Lucas otieno Ondong versus Equatorial Commercial bank Limited & another
    [2016] eKLR
  • Lucy Nungari Ngigi & 128 others v National Bank of Kenya Limited & another
    [2015] eKLR
Jurisdiction invoked
Article 162(2) of the Constitution read with section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Waithira Mbage v Hillcrest Investment Limited [2017] KEELRC 1988 (KLR)", Case Analysis (2017). Notice of Motion dated 21st February 2017 in Claim dated 27th September 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1988/eng@2017-07-27

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