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ELRCPartially AllowedNot stated in the judgment (notice of motion dated September 16, 2022)· [2023] KEELRC 472 (KLR)

Mwenda v Afribusiness LLP & 2 others (Cause E409 of 2020) [2023] KEELRC 472 (KLR)

Employment and Labour Relations Court
22 February 2023
JGJacob Gakeri
1,933 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 add a partner to a claim against an LLP because the claimant couldn't show why her presence was necessary.

What this practically means

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Executive summary

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This ruling of the Employment and Labour Relations Court at Nairobi, delivered by Dr. Jacob Gakeri on 22 February 2023, determines a notice of motion dated 16 September 2022 by the claimant, Patrick Njoroge Mwenda, seeking leave to amend his statement of claim to add a proposed 3rd respondent and to have the amended claim deemed duly filed and served. The claimant alleges he was engaged as consulting director of the 1st respondent LLP at a gross monthly pay of Kshs 150,000 from 16 May 2017, was underpaid and unpaid for several months, that taxes deducted were not remitted, and that no certificate of service was issued. He sought to enjoin the 3rd respondent, allegedly a partner/proprietor of the 1st respondent, to plead facts relevant to lifting the corporate veil. The respondents opposed, arguing the 1st respondent is a limited liability partnership with separate legal personality under section 6(2) of the Limited Liability Partnership Act, 2011, that joining the 3rd respondent would improperly lift the corporate veil, and that the application was an abuse of process given a pending misjoinder application. The court applied the liberal principles governing amendment of pleadings from Central Kenya Ltd v Trust Bank Ltd, Eastern Bakery v Castelino and related authorities, but found the application filed more than two years after the suit was not timeous, that no evidence connected the proposed 3rd respondent to the claim, and that prejudice could be occasioned to her. The joinder was disallowed, the deeming prayer did not arise, the claimant was granted liberty to amend otherwise, and each party was ordered to bear their own costs.

Key legal issues

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01

Whether the 3rd respondent should be enjoined to the suit

Holding

The joinder was refused; the applicant did not demonstrate the purpose of the proposed addition or the relationship of the 3rd respondent to the parties.

Reasoning

The court noted the application was filed over two years after the suit and was not timeous. The supporting affidavit did not mention the role of the proposed 3rd respondent, and registration documents were silent on her relationship with the 1st respondent. The 1st respondent, as an LLP under section 6(2) and (3) of the Limited Liability Partnership Act, is a body corporate distinct from its partners, and amending to enjoin the 3rd respondent risked prejudice to her.

p. 4
02

Whether the amended statement of claim should be deemed duly filed and served

Holding

This issue did not arise, as the proposed amendment had been found unjustified, though the applicant remained at liberty to amend in other respects.

Reasoning

Having disallowed the joinder of the 3rd respondent, the court found the request to deem the amended statement of claim as filed and served moot. It nonetheless preserved the applicant's general liberty to amend the statement of claim in any other necessary manner, reflecting the liberal approach to amendments where no prejudice is occasioned.

p. 5

Legal principles established

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  • Amendments to pleadings should be freely allowed if they can be made without injustice to the other side, and there is no injustice if the other side can be compensated by costs
  • A limited liability partnership is a body corporate distinct and separate from its partners

Court orders

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  1. 1.The proposed addition of the 3rd respondent is disallowed
  2. 2.The applicant is at liberty to amend the statement of claim in such other manner as may be necessary
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules, 2010Order VIII; Order 21 Rule 1
  • Limited Liability Partnership Act, 2011Section 6(2) and (3)
  • Constitution of KenyaArticles 159(2)(d) and 48

Cases cited (13)

  • St Patrick’s Hill School Ltd V Bank of Africa Kenya Ltd
    (2018) eKLR
  • Tildesley V Harper
    (1878) 10 Ch D
  • Salomon V Salomon & Co. Ltd
    (1897) AC 78
  • Charles Ray Makuto V Almakony Ltd & another
    (2016) eKLR
  • Antony Francis t/a Wareham & 2 others V Kenya Post Office Savings Bank
  • Satya Bhama Gandhi V Director of Public Prosecutions & 3 others
    (2018) eKLR
  • Green Square Ltd V Shaladia Associates & 2 others
    (2017) eKLR
  • Ochieng & others V First National Bank of Chicago
    Civil Appeal No. 147 of 1991
  • Harrison C Kariuki V Blue Shield Insurance Co Ltd
    (2006) eKLR
  • Central Kenya Ltd V Trust Bank Ltd
    (2000) EALR 365
  • Institute for Social Accountability & another V Parliament of Kenya & 3 others
    (2014) eKLR
  • Elijah Kipngeno Arap Bii V Kenya Commercial Bank Ltd
    (2013) eKLR
  • Eastern Bakery V Castelino
    (1958) EA 461
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order VIII of the Civil Procedure Rules, 2010

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, "Mwenda v Afribusiness LLP & 2 others (Cause E409 of 2020) [2023] KEELRC 472 (KLR)", Case Analysis (2023). Not stated in the judgment (notice of motion dated September 16, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/472/eng@2023-02-22

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