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ELRCDismissedNot stated in the judgment (Petition dated and filed on 9th October, 2019)· [2019] KEELRC 6 (KLR)

Fred Siyoi v Pharmacy and Poisons Board of Kenya [2019] KEELRC 6 (KLR)

Employment and Labour Relations Court of Kenya
6 December 2019
2,554 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Employment Court refused to add a third party to an unfair termination case, ruling that only people the petition actually targets may join as respondents.

What this practically means

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Executive summary

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Wambua Maithya, the proposed 2nd Respondent, moved the court by Notice of Motion dated 17th October, 2019 seeking to be enjoined as 2nd Respondent in a petition filed by Dr. Fred Moin Siyoi challenging the Pharmacy and Poisons Board's intended termination of his employment. Maithya argued that the Petitioner and Respondent had concealed the existence of Constitutional Petition No. 2 of 2019 (Machakos), in which Odunga J quashed the Board's recruitment of the Registrar/CEO and directed fresh recruitment, and sought stay and setting aside of conservatory orders issued on 9th October, 2019 plus striking out of the Petition as res judicata and an abuse of process. The Petitioner opposed, contending Maithya was a stranger to his employment contract with the Respondent and lacked any direct legal interest; the Respondent filed grounds of opposition arguing the Applicant did not meet the definition of a Respondent under the Mutunga Rules. The court applied the joinder principles in Joseph Njau Kingori and the Supreme Court's criteria in Francis Kariuki Muruatetu, holding that an intended party must show a proximate, identifiable interest, prejudice from non-joinder, and distinct submissions. The court found no relief was sought from the Applicant, that the Machakos Petition was spent and its judgment in the public domain, and that the Respondent could raise any pertinent issues without the Applicant's presence. The application dated 17th October, 2019 was found without merit and denied, leaving the conservatory orders intact and the Petition in place. No express costs order was stated.

Key legal issues

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01

Whether the proposed 2nd Respondent met the threshold for joinder

Holding

He did not; he has no identifiable legal stake and no relief is sought against him in this employment petition

Reasoning

The court applied the joinder principles in Joseph Njau Kingori and the Supreme Court's interested-party criteria in Francis Kariuki Muruatetu. The Applicant had to show a proximate, clearly identifiable interest, prejudice from non-joinder, and distinct submissions. The Petition concerns the private employment relationship between the Petitioner and the Respondent, and the Machakos judgment is in the public domain and spent, so the Respondent can raise any pertinent issue without the Applicant's presence.

p. 4
02

Whether the Machakos High Court judgment rendered the Petition res judicata or an abuse of process

Holding

No; the Machakos Petition is spent and the present Petition challenges the intended termination of the Petitioner's employment, an issue in which the Applicant has no stake

Reasoning

The Applicant argued the issues were res judicata having been determined in Constitutional Petition No. 2 of 2019 before Odunga J. The court noted that judgment quashed the recruitment advertisement and directed fresh recruitment, but the present Petition seeks to stay the termination letter of 4/10/2019 and concerns an individual employee who was not a party to the Machakos case. The Machakos Petition being spent, it furnished no basis for striking out.

p. 4

Legal principles established

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  • An intended party must demonstrate what remedies are being sought from it by the petitioner and what distinct issues it will raise which no other party can
  • Joinder principles from Joseph Njau Kingori: the party must be necessary or proper, relief must flow from him, and his presence must enable the court to effectually adjudicate

Court orders

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  1. 1.The Notice of Motion Application dated 17th October, 2019 is denied for lack of merit

Authorities

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Legislation

  • Civil Procedure ActSections 66, 1A, 1B, 3A and 7
  • Civil Procedure Rules, 2010Order 1 Rule 10(2), Order 2 Rule 15(1)(b) and (d), Order 40 Rule 7, Order 51 Rule 1
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013definition of Respondent

Cases cited (7)

  • Kensalt Limited Vs Water Resources Management Authority (2018) eKLR
    (2018) eKLR
  • Attorney General Vs Kenya Bureau of Standards & Another (2018) eKLR
    (2018) eKLR
  • Joseph Njau Kingori Vs Robert Maina Chege & 3 Others (2002) eKLR
    (2002) eKLR
  • Francis Kariuki Muruatetu & Another versus Republic & 4 Others, Supreme Court Petition No. 15 of 2015 (2018) eKLR
    Supreme Court Petition No. 15 of 2015 (2018) eKLR
  • Talewa Road Constructors Vs Kenya National Highways Authority & Another (2019) eKLR (Misc. Application No. 535 of 2018)
    (2019) eKLR
  • Heritage Insurance Co. Ltd & Another Vs Gladys Kayalo Mmbo (2019) eKLR
    (2019) eKLR
  • Augustine Kimenteria Nthiga Vs David Ndubi Stower (2008) eKLR
    (2008) eKLR
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (employment-related fundamental rights petition)

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, "Fred Siyoi v Pharmacy and Poisons Board of Kenya [2019] KEELRC 6 (KLR)", Case Analysis (2019). Not stated in the judgment (Petition dated and filed on 9th October, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/6/eng@2019-12-06

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