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ELRCDismissedNot stated in the judgment· [2021] KEELRC 676 (KLR)

Maureen Onsongo v EOH Limited an EOH/Copy Cat Limited Company (Cause 189 of 2020) (Employment and Labour) [2021] KEELRC 676 (KLR)

Employment and Labour Relations Court
18 October 2021
JGJacob Gakeri
2,056 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court refused to strike out a worker's case just because the wrong company name was sued.

What this practically means

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Executive summary

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This is a ruling of the Employment and Labour Relations Court at Nairobi, delivered virtually on 18 October 2021 by Dr. Jacob Gakeri J, on a notice of preliminary objection dated 3 August 2021 filed by the Applicant/Respondent, Copy Cat Limited. The objection sought striking out of the Claimant's suit as incurably defective, incompetent and bad in law on the ground that the Respondent was not a proper party, two companies - Copy Cat Limited and EOH Seal Limited - having been sued as one. Counsel for the Applicant relied on Mukisa Biscuit on the nature of preliminary objections and on Salomon v Salomon for the proposition that the two companies are distinct legal entities, EOH Seal Limited being the actual employer per the letter of offer and confirmation letter. The Claimant opposed solely through a replying affidavit invoking Order 1 Rule 9 of the Civil Procedure Rules, which provides that no suit shall be defeated by misjoinder or non-joinder of parties, and pointed to the Respondent's admissions in its Response to the Memorandum of Claim. The court accepted the Salomon principle and the importance of proper parties, but held that Order 1 Rule 9 is mandatory: misjoinder cannot defeat a suit. The appropriate remedy was an application to strike out the improperly joined party's name, or an amendment under Order 1 Rule 10(2), which remained available before judgment. Guided by Article 159(2)(d) of the Constitution, the court dismissed the preliminary objection with no order as to costs and directed that the suit proceed to hearing on the merits.

Key legal issues

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01

Effect of misjoinder of parties on a suit

Holding

The preliminary objection founded on misjoinder fails; misjoinder cannot defeat a suit and the court may deal with the matter as regards the parties actually before it.

Reasoning

Order 1 Rule 9 of the Civil Procedure Rules is couched in mandatory terms: misjoinder or non-joinder cannot defeat a suit. Although proper parties matter for jurisdiction, and although Salomon establishes that Copy Cat Ltd and EOH Seal Ltd are distinct legal entities with the respondent named as an amorphous entity, the appropriate remedy was an application to strike out the improperly joined party's name or an amendment, not striking out the entire suit. Article 159(2)(d) requires justice to be administered without undue regard to procedural technicalities.

p. 3
02

Distinct legal personality of the two companies

Holding

The court accepted the Salomon principle that the two companies are distinct legal entities, noting the respondent named in the suit is an amorphous entity, but held this did not warrant striking out the suit.

Reasoning

The court acknowledged that a company at law is a different person altogether from its subscribers, and observed that the entity sued was neither EOH Seal Limited nor Copy Cat Limited but 'EOH Limited Company', an amorphous person. The letter of offer and confirmation showed the Claimant was employed by EOH Seal Limited. Nevertheless, this defect went to proper joinder, remediable by amendment or striking out a name, not termination of the suit.

p. 3

Legal principles established

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  • Misjoinder or non-joinder of parties cannot be a ground to defeat a suit
  • Courts should sustain suits rather than terminate them on technicalities, in favour of substantive justice
  • The remedy for misjoinder is striking out the improper party's name or amendment, not dismissal of the whole suit

Court orders

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  1. 1.The preliminary objection dated 3rd August 2021 is dismissed with no order as to costs
  2. 2.Suit to be heard on merits
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over the claim (established under Article 162(2) of the Constitution); not expressly cited in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Maureen Onsongo v EOH Limited an EOH/Copy Cat Limited Company (Cause 189 of 2020)  (Employment and Labour) [2021] KEELRC 676 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/676/eng@2021-10-18

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