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ELRCPartially AllowedNot stated in judgment

Kenya Hotels & Allied Workers Union v Nyando Enterprise t/a Merry Land Hotel & another (Cause E069 of 2024) [2025] KEELRC 283 (KLR)

Employment and Labour Relations Court
5 February 2025
NMNzioki Wa Makau
1,115 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 let a union fix a company's wrong name in its case and kept the hotel's manager as a party until trial.

What this practically means

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Executive summary

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This was a ruling on a preliminary objection dated 21st November 2024 in an employment dispute before the Employment and Labour Relations Court at Kisumu. The Respondents sought to strike out the 1st Respondent, described as a non-existent unregistered entity, and the 2nd Respondent, Erick Nyamunga, on grounds of misjoinder and non-joinder, asserting there was no privity of contract between the Claimant's members and the 2nd Respondent. The Claimant, through a replying affidavit, contended that the 2nd Respondent had represented the 1st Respondent in conciliation at the Ministry of Labour and in CBA registration, and sought leave to amend the pleadings to reflect the correct name of the 1st Respondent, Nyando Enterprises Limited t/a Hotel Merryland. The Claimant relied on section 2 of the Employment Act, which defines an employer to include an agent, foreman, manager or factor of a company, and on authorities on piercing the corporate veil to justify retaining the 2nd Respondent. The court allowed the amendment of the 1st Respondent's name, noting the Claimant's concession and the Respondents' acquiescence. On the 2nd Respondent, the court held that he falls within the statutory definition of employer as a conceded factor of the 1st Respondent, and that any question of piercing the corporate veil was a matter for trial. The objection succeeded only to the extent of the name amendment, and there was no order as to costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the name of the 1st Respondent could be amended to reflect the correct entity
  2. 2.Whether the 2nd Respondent (Erick Nyamunga) should be struck out of the suit

Key legal issues

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Amendment of the name of the 1st Respondent to reflect the correct registered entity

Holding

The court allowed amendment of the 1st Respondent's name to Nyando Enterprises Limited t/a Hotel Merryland, as the Claimant conceded the misnomer and the Respondents acquiesced

Reasoning

The Claimant conceded it had not cited the correct 1st Respondent and sought 7 days to amend its pleadings. The Respondents appeared to acquiesce to the change. Amending the name to the correct incorporated entity would avoid an unjust or worthless judgment, consistent with Order 1 Rule 10 of the Civil Procedure Rules and Rule 14(6) of the ELRC Rules allowing amendment and joinder corrections at any stage.

p. 3
02

Whether the 2nd Respondent should be struck out for want of privity of contract

Holding

The 2nd Respondent remains a party; whether he was improperly cited, including any piercing of the corporate veil, is to be determined at trial

Reasoning

Section 2 of the Employment Act defines an employer to include any agent, foreman, manager or factor of a company employing an individual. The Respondents conceded the 2nd Respondent is a factor of the 1st Respondent. The court declined to determine the corporate veil issue on a preliminary objection, reserving it for trial with a decision on liability to be made at the end of trial.

p. 3

Legal principles established

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  • Where a claimant has sued under an incorrect name for the 1st Respondent and the objection is taken, the court may allow amendment of the name to reflect the correct entity, particularly where the respondents do not oppose the amendment
  • An agent, foreman, manager or factor of a company falls within the definition of an employer under section 2 of the Employment Act and may remain a party pending determination at trial

Court orders

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  1. 1.The name of the 1st Respondent is amended to reflect the correct party – Nyando Enterprises Limited t/a Hotel Merryland
  2. 2.The 2nd Respondent, Erick Nyamunga, remains a party in the suit
  3. 3.There is no order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

NM
majority

Wrote the judgment

Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment and Labour Relations Court Act and the Employment Act; Court Rules Rule 14(6) invoked for amendment

Relief refused

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Striking out of the 2nd Respondent (Erick Nyamunga) from the suit

The court held that whether he was improperly cited as a party, including any piercing of the corporate veil, is an issue for trial

p. 3

Costs

No order as to costs - 'There is no order as to costs.'

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The Court therefore accedes to the request to have the name of the 1st Respondent amended to reflect the correct party – Nyando Enterprises Limited t/a Hotel Merryland.
p. 3Amendment of party's name
Presently he continues to be a party in the suit. The objection succeeds to the extent the name of the 1st Respondent is changed to reflect the correct nomenclature of the 1st Respondent, an incorporated entity.
p. 3Final orders - disposition of the preliminary objection
There is no order as to costs.
p. 3Costs

Issues in the judgment

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minor

The judgment inconsistently dates the CBA, at one point as 3rd May 2019 and later as 3rd May 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, "Kenya Hotels & Allied Workers Union v Nyando Enterprise t/a Merry Land Hotel & another (Cause E069 of 2024) [2025] KEELRC 283 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/283/eng@2025-02-05

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