Dorsilla Agunda v Hillcrest Investments Limited
The bottom line
#A Kenyan court refused to add a company's new owner to an unfair dismissal case because the employee missed the legal deadline to object to the business transfer.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Braeburn Schools Limited should be joined as a respondent to this suit
Key legal issues
#Whether Braeburn Schools Limited should be joined as a respondent to the employment suit
The application for joinder was dismissed; Braeburn is neither a proper nor necessary party because it did not assume the transferor's pre-transfer liabilities and the claimant did not institute proceedings against it within the statutory notice period.
The court applied Order 1 Rule 10(2) CPR and the joinder principles in EG v Attorney General. The Gazette Notice under the Transfer of Businesses Act expressly excluded assumption of pre-transfer liabilities and, per section 3(4), is prima facie evidence against both parties. The claimant neither objected to the transfer nor sued Braeburn within the notice period, so the transferee's statutory liability had ceased. Joinder would prejudice Braeburn and convolute the suit.
Effect of the Gazette Notice under the Transfer of Businesses Act, Cap 500
The Gazette Notice of 7th October 2022 was conclusive prima facie evidence that the transferee would not assume pre-transfer liabilities, and the claimant is deemed to have had constructive notice of its contents.
Section 3(4) makes the Gazette notice prima facie evidence against transferor and transferee. The notice period lapsed without the claimant instituting proceedings against Braeburn or objecting to the Registrar, so under the proviso to section 3(2) the transferee's liability ceased. The claimant's failure to supply the underlying agreement could not displace the statutory presumption.
Legal principles established
#- Under section 3(1) of the Transfer of Businesses Act, Cap 500, a transferee becomes liable for liabilities incurred in the transferred business notwithstanding any agreement to the contrary, but that liability ceases once the statutory notice becomes complete unless proceedings were instituted within the notice period.
- Production of the Gazette notice under section 3(4) of the Transfer of Businesses Act is prima facie evidence against both transferor and transferee of the statements contained in the notice.
- A party whose presence is not necessary for effectual adjudication, and who assumed no liability for the claim, should not be joined; joinder that would vex parties and convolute proceedings is refused.
Court orders
#- 1.Dismissal of the Claimant's Notice of Motion dated 16th January 2026
- 2.Costs of the application to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over the employment cause; interlocutory application under Order 1 Rule 3 & 10 of the Civil Procedure Rules
Relief refused
#Joinder of Braeburn Schools Limited as a respondent (2nd respondent) to the suit
Braeburn is not a proper or necessary party; it did not assume the transferor's pre-transfer liabilities and joinder would prejudice and convolute the proceedings
Costs of the application to the Claimant
Application dismissed with costs
Costs
Notice of Motion dated 16th January 2026 dismissed with costs (costs to the Respondent).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In view of the foregoing matters, I find that Braeburn Schools Limited is not a proper party to these proceedings.
The Claimant did not institute proceedings against Braeburn Schools Limited within the notice period nor did she file an objection with the Registrar within the stipulated time to stop the Transfer.
Consequently, I dismiss the Notice of Motion dated 16th January 2026 with costs.
The Claimant's application is therefore speculative and is aimed at dragging Braeburn Schools Limited into litigation when it has no liability to the Claimant.
Issues in the judgment
#Gender inconsistency in referring to claimant
Conflicting dates for notification of non-renewal
Paragraph numbering skips from 15 to 17
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Dorsilla Agunda v Hillcrest Investments Limited", Case Analysis (2026). Cause No. E571 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2585/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.