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ELRCDismissedMombasa ELRCC (application dated 28.05.2021, filed 22.06.2021)· [2022] KEELRC 384 (KLR)

Nyali International Beach Hotel v MPE Shindo Bundi and 145 others; Nyali Sun Africa Beach Hotel and SPA Limited (Interested Party) [2022] KEELRC 384 (KLR)

Employment and Labour Relations Court
1 April 2022
1,951 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court dismissed a hotel's bid to merge three employee lawsuits, ruling they involve different disputes and the request merely delayed the case.

What this practically means

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Executive summary

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The interested party, Nyali Sun Africa Beach Hotel and Spa Limited, filed a notice of motion dated 28.05.2021 seeking consolidation of the present suit with Mombasa ELRCC No. 924 of 2017 and ELRCC No. 49 of 2020, striking out of duplicated or deceased parties' names, leave to amend pleadings consequent upon consolidation, and expungement of its own name from proceedings in which it was sued before its incorporation on 28.08.2017. It argued the three suits raised common issues of fact and law, arose from the same transactions, and that it was a distinct legal entity from Nyali International Beach Hotel, being merely a management services provider and not an employer. The respondents, through the trade union's Chief Industrial Relations Officer, opposed the application as belated, dilatory, and aimed at delaying a suit fixed for hearing; the two other suits were already consolidated. The claimant filed nothing. The Court, per Byram Ongaya J, applied rule 23 of the ELRC (Procedure) Rules, 2016 and found the three suits founded on different transactions - a strike over unpaid salaries and service charge, unfair terminations, and redundancy terminations respectively - with no common question of fact or law. It further held the application was res judicata, the court having on 07.02.2019 ordered the suits be heard separately but simultaneously. The prayer to expunge the interested party contradicted the order of 16.02.2018 enjoining it, and the amendment prayers collapsed for want of evidence of deaths. The application was dismissed with costs to the claimant and respondents.

Key legal issues

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01

Whether the three suits met the rule 23 test for consolidation

Holding

Consolidation refused; the suits arise from different transactions and no common question of fact or law was established

Reasoning

The Court examined the issues in dispute in each suit: the instant suit concerns a strike over non-payment of salaries and service charge; ELRCC 49 of 2020 concerns wrongful and unfair termination of 70 grievants; ELRCC 924 of 2017 concerns termination on account of redundancy. These are different transactions, and it is not practical or appropriate to proceed simultaneously.

p. 2
02

Whether the consolidation application was res judicata

Holding

Yes - the court had on 07.02.2019 already addressed consolidation and directed separate but simultaneous hearing

Reasoning

The court perused its own file and found that on 07.02.2019 parties had addressed it on consolidating the present suit with ELRCC 924 of 2017, and it ordered the suits be heard separately but simultaneously. Re-litigating consolidation was therefore res judicata and an abuse of process.

p. 3
03

Whether the interested party should be expunged from the proceedings

Holding

No - its joinder was conclusively decided by order of 16.02.2018 and it is a proper party

Reasoning

The court had already enjoined the applicant as an interested party by order of 16.02.2018 after a noticed application. The expungement prayer contradicted that order. Further, the applicant's affidavit offered to file further documents toward just determination, showing it is a proper party.

p. 3
04

Whether amendment and striking out of duplicated/deceased parties was justified

Holding

Prayers collapsed; no evidence of deaths and duplicity not offensive given different transactions

Reasoning

Since consolidation was refused, consequential amendment was speculative. The allegation that some claimants were deceased was unsupported by any death certificates, remaining an empty allegation. Duplicity of names across suits does not offend the law where the suits concern different transactions.

p. 3

Legal principles established

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  • Consolidation under rule 23 requires a common question of fact or law or that it be practical and appropriate to proceed simultaneously
  • A party may bring numerous suits against the same defendant upon different transactions since the causes of action differ
  • An application repeating an issue already decided by the court is res judicata and an abuse of process

Court orders

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  1. 1.The application dated 28.05.2021 and filed on 22.06.2021 is dismissed
  2. 2.The applicant to pay the claimant and the respondents the costs of the application
  3. 3.Parties to take prompt steps towards the expeditious determination of the suit as may be appropriate

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 rule 10; Order 8 rule 3; Order 11 rule 3; Order 51 rules 1 and 3
  • Civil Procedure ActSections 1A, 1B and 3A
  • Employment and Labour Relations Court (Procedure) Rules, 2016Rule 23
  • Companies Act, Cap 486Section 366
  • Labour Relations Act, 2007Section 2(e)
  • Employment Act, 2007Section 40
  • Regulation of Wages and Conditions of Employment (Hotel and Catering Trade) OrderSection 15
Jurisdiction invoked
Inherent powers of the Court; Employment and Labour Relations Court (Procedure) Rules, 2016 rule 23; Civil Procedure Act sections 1A, 1B, 3A

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, "Nyali International Beach Hotel v MPE Shindo Bundi and 145 others; Nyali Sun Africa Beach Hotel and SPA Limited (Interested Party) [2022] KEELRC 384 (KLR)", Case Analysis (2022). Mombasa ELRCC (application dated 28.05.2021, filed 22.06.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/384/eng@2022-04-01

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