Ian Baraka v Viya Health Enterprises Limited & 3 others

the 4th Respondent represents the 3rd Respondent in managing and auditing the 1st Respondent’s activities. 3. The Claimant blames his tribulations on all the four Respondents. For instance, at paragraph 36 of the Memorandum of Claim, he states thus:‘’The totality of the Respondents’ actions demonstrates a scheme aimed at coercing the Claimant to resign involuntarily from employment.’’ 4. In the Claimant’s view therefore, all the four (4) Respondents are necessary parties to the action. And hence his decision to implead all of them in the claim. 5. On being served with the Memorandum of Claim, the Respondents filed two separate applications. The 2 nd Respondent filed the application dated 18th September 2025 whilst the other of Respondents filed the application dated 11th June 2025. 6. The application dated 18th September 2025 seeks to strike out the Claimant’s suit against the 2 nd Respondent: for want of disclosure of a cause of action against this Respondent; and for want of jurisdiction. 7. The 2nd Respondent asserts that there is no employment relationship between it and the Claimant. It contends that it only has a consulting agreement with the 1st Respondent, the Claimant’s employer. As such, it avers that it has been improperly sued. CAUSE NO. E232 OF 2025 2

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8. The Claimant has opposed the application. He contends that the 2nd Respondent is a necessary party to the action. As such, he avers that the application is an abuse of the court process. 9. Order 2 rule 15 (1) of the Civil Procedure Act provides for striking out of pleadings for, inter alia, non-disclosure of a cause of action or defense. However, rule 15 (2) thereof makes it plain that where a party applies to strike out a pleading on the ground that it does not disclose a cause of action or defense, he should not file evidence in support of the request. All that he is required to file is a bare application since in determining this kind of application, the court is restricted to scrutinizing the impugned pleading as opposed to considering affidavit or other evidence. 10. In contravention of this requirement, the 2 nd Respondent has presented affidavit evidence to support the application. This renders the application fatally defective. 11. The 2nd Respondent has further alleged that the court has no jurisdiction to entertain the case. The basis for the contention is that there is no employment relationship between the parties (Claimant and 2nd Respondent). The 2nd Respondent contends that it only had an independent contractor relationship with the 1st Respondent and had nothing to do with the Claimant’s employment. 12. The Claimant has contested this assertion. He claims that the 2nd Respondent was the executing agent of the 1st Respondent’s Human Resource function CAUSE NO. E232 OF 2025 and was therefore 3

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intricately involved in the events which resulted in his resignation. He thus contends that the 2 nd Respondent is a necessary party to the action. 13. The law entitles a litigant to implead, as a party to a suit, any person or entity he/she believes is necessary for the effective adjudication of his case (Githere v Mwangi & 2 others; Waithaka (Proposed Defendant) [2025] KEELC 3049 (KLR)). Whether the presence of the impleaded party is essential is a question of both law and fact which may sometimes only be capable of determination after evaluation of the evidence to be tendered at the trial against the applicable law. 14. Whilst the 2nd Respondent asserts that it is not a necessary party to the action and that the court should decline jurisdiction over it, the Claimant contends otherwise. This being the position, the court holds the view that the issue regarding whether the 2nd Respondent was properly impleaded in the action can only be determined after evaluating the evidence which will be tendered on the matter during trial of the case. 15. The Claimant of course reserves the right to reexamine whether he has a genuine grievance against this Respondent to warrant its continued presence in the suit. This is because whatever he decides, he should be alive to the reality that dragging an unnecessary party into a cause has the potential of saddling him with costs at the tail end of a case. CAUSE NO. E232 OF 2025 4

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16. The other application dated 11th June 2025 seeks the following orders:a) That the court be pleased to strike out the names of the 3rd and 4th Respondents from the proceedings. b) That the Claimant be condemned to bear the costs of the application. 17. The application is anchored on the grounds on the face thereof and on the affidavit of one Marcie Cook. The affiant avers that the 3rd and 4th Respondents have no employment relationship with the Claimant. She avers that the 3 rd Respondent is only a shareholder in the 1 st Respondent and that the 4th Respondent is the local branch of the 3 rd Respondent with no employment relationship with the Claimant. As such, she contends that the two Respondents are not necessary parties to the suit. 18. The Claimant has opposed this application as well. He has filed a replying affidavit dated 14th November 2025 to anchor his response to the motion. 19. The Claimant avers that under section 2 of the Employment Act, the term ‘’employer’’ includes the agent, foreman, manager or factor of the employer. He contends that the 3 rd and 4th Respondents admit having a relationship with the 1 st Respondent which qualifies them as managers of the 1 st Respondent. In his view therefore, this qualifies them to be his employers within the meaning of the aforesaid provision of statute. CAUSE NO. E232 OF 2025 5

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20. The Claimant asserts that the 3 rd and 4th Respondents exercised considerable control over the 1 st Respondent’s decision making in relation to his contract of service. As such, he contends that the two played a critical role in the events which led to the closure of his contract thus rendering them necessary parties to the action. 21. As noted earlier, the law entitles a litigant to implead any person in a suit if he believes that the presence of the person is necessary for the proper resolution of his case. As a matter of fact, the law entitles such litigant to bring on board all persons he believes to be proper defendants if he is in doubt regarding from whom he is entitled to obtain a relief. 22. In such case, the obligation of determining who the proper parties to the action should be is left to the court. As stated earlier, this may sometimes only be possible after evaluating the evidence which the parties will tender on the matter during trial. This appears to be the import of Order 1 rule 7 of the Civil Procedure Rules which provides thus:‘’Where the plaintiff is in doubt as to the persons from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to which of the defendants is liable, and to what extent, may be determined as between all parties.’’ 23. Having regard to the foregoing, the court is reluctant to issue an order to remove the 3rd and 4th Respondents from the suit at this preliminary stage. The question regarding CAUSE NO. E232 OF 2025 6

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whether they are necessary parties to the action will be answered after the court evaluates the evidence that will be tendered on the matter during full trial. Determination 24. The upshot is that the court declines to grant the applications dated 11th June 2025 and 18th September 2025. 25. Costs of the two applications shall abide the outcome of the trial. Dated, signed and delivered on the 25th day of September, 2026 B. O. M. MANANI JUDGE In the presence of: …………….for the Claimant …………….for the Respondent ORDER In light of the directions issued on 12 th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and CAUSE NO. E232 OF 2025 7

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rulings shall be dated, signed and delivered in the open court. B. O. M MANANI CAUSE NO. E232 OF 2025 8

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