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)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the three suits met the rule 23 test for consolidation
Consolidation refused; the suits arise from different transactions and no common question of fact or law was established
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.
Whether the consolidation application was res judicata
Yes - the court had on 07.02.2019 already addressed consolidation and directed separate but simultaneous hearing
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.
Whether the interested party should be expunged from the proceedings
No - its joinder was conclusively decided by order of 16.02.2018 and it is a proper party
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.
Whether amendment and striking out of duplicated/deceased parties was justified
Prayers collapsed; no evidence of deaths and duplicity not offensive given different transactions
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.
Legal principles established
#- 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
#- 1.The application dated 28.05.2021 and filed on 22.06.2021 is dismissed
- 2.The applicant to pay the claimant and the respondents the costs of the application
- 3.Parties to take prompt steps towards the expeditious determination of the suit as may be appropriate
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.