Dorsilla Agunda v Hillcrest Investments Limited

2026 and a Further Affidavit sworn on 17 th March 2026. The Braeburn Schools Limited (herein refered as Braeburn) has opposed the Motion by a Replying Affidavit sworn on 22 nd January 2026 by its Chief Operations Officer, Mr. Christopher Childs and a Further Affidavit sworn on 3 rd June 2026. The Motion was then disposed of by written submissions. Facts 3. The Claimant joined the Respondent, Hillcrest Investments Limited, as a trainee teacher in January 2003 at Karen Campus. Her employment was on fixed term contract basis. Over the years, the Claimant's roles expanded and she became the Head of Girls’ Sports, a teacher of Business Studies and Economics, a Form Tutor and the Head of Interact responsible for the 1st Respondent's Corporate Social Responsibility. 4. His last contract ran from 1 st September 2018 to 31st August 2020 and by a letter dated 23rd January 2020, the respondent notified the claimant that her contract would not be renewed after expiry on 31st August 2020. 5. On 23rd September 2020, the claimant filed this suit claiming damages for unfair dismissal plus claims for rest, salary underpayment, no overtime payment, no leave days, no housing allowance which allegedly accrued during her seventeen (17) years’ service at the respondent’s school. RULING IN ELRC CAUSE NO. E571 OF 2020. 2

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She also prayed for damages for gross abuse of her fundamental human rights. 6. The Claimant further states that her termination was discriminatory against her on account of her race as the 1 st Respondent proceeded to hire a Caucasian to replace her, who though not as qualified as the Claimant, would earn more. 7. On 30th September 2021, the respondent filed a Response to the Claimant’s Memorandum of Claim admitting the employment relationship with the claimant from the year 2003 until 10th January 2020 when it notified her that the contract of service would not be renewed upon expiry on 31 st August 2020. It averred that the separation was fair and it paid the claimant all her dues. Therefore, it prayed for the suit to be dismissed with costs. 8. On 14th September 2022, the 1st Respondent and Braeburn Schools Limited entered into a Business and Asset Transfer Agreement. Pursuant to the Transfer of Businesses Act, Cap 500, a Gazette Notice dated 7th October 2022 was published notifying the public of the intended transfer of the nursery, primary, secondary education and student boarding business carried on by Hillcrest Investments Limited under the names "Hillcrest", "Hillcrest Secondary", "Hillcrest International", "Hillcrest Preparatory", "Hillcrest Early Years" and "Hillcrest RULING IN ELRC CAUSE NO. E571 OF 2020. 3

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Kindergarten" at the Hillcrest school facilities in Langata Road, Karen in Nairobi. 9. The Gazette Notice dated 7th October 2022 expressly stated that: "All money, debts or liabilities due and owing by the Transferor in respect of the businesses of the Transferor up to the date of the transfer as set out above shall be received and paid by the Transferor. Save as specifically provided in the Agreement, the Transferee will not assume nor is it intended to assume any liabilities incurred by the Transferor with respect to its assets or business up to the date of transfer." 10. On 30th December 2022, the transfer of business was completed and Braeburn Schools Limited acquired the assets and business of Hillcrest Investments Limited. 11. On 6th November 2025, the firm of L. W. Wangombe Advocates, previously on record for the Respondent in this suit, withdrew from its services claiming lack of instruction pursuant to the acquisition of the 1 st Respondent by Braeburn Schools Limited. 12. The Claimant contends that the 1st Respondent is circumventing and evading its legal obligations by claiming that it has ceased to exist and operate, having been wholly acquired by Braeburn Schools Limited. The Claimant seeks RULING IN ELRC CAUSE NO. E571 OF 2020. 4

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to enjoin Braeburn Schools Limited as a party to this suit for the effectual determination of the issues in dispute. 13. The Claimant filed the instant Notice of Motion dated 16 th January 2026 seeking to enjoin Braeburn Schools Limited as a respondent to these proceedings and attached a draft Amended Claim joining Braeburn as the 2nd respondent. 14. However, Braeburn Schools Limited denied being the former employer of the Claimant and averred that it did not acquire or inherit any liabilities that accrued when the Claimant was an employee of the 1st Respondent. Braeburn further averred that the Gazette Notice dated 7 th October 2022 was clear that the transferee would not assume any liabilities incurred by the transferor with respect to its assets or business up to the date of transfer. 15. It further stated that it stands to suffer immensely in terms of resources and time if joined as a respondent in this suit as it has nothing to do with liabilities incurred before the acquisition of the respondent’s assets and business. It maintained that the joinder being sought is merely a fishing expedition and not a meritorious application. Analysis 17. Having considered the Notice of Motion dated 16 th January 2026, the rival Affidavits and the submissions filed by the two sides, the main issue for determination is whether RULING IN ELRC CAUSE NO. E571 OF 2020. 5

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Braeburn Schools Limited should be joined as a respondent to this suit. 18. The principles governing joinder of parties have been established in the Civil Procedure Rules, and the case law. Order 1 Rule 10(2) of the Rules provide that the court may at any stage of the proceedings order that: “… the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit be added.” 19. The principles for joinder were articulated in the case of EG v Attorney General; David Kuria Mbote & 10 others (Interested Parties) [2021] eKLR where the Court of Appeal held that for joinder to issue: “ a) The intended party has a personal interest or stake in the matter in question; and that interest is clearly identifiable and proximate enough and not merely peripheral. b) The intended party's presence would enable the court to resolve all matters in dispute. c) The intended party would suffer prejudice in case of non-joinder. RULING IN ELRC CAUSE NO. E571 OF 2020. 6

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d) The joinder of the intended party will not vex the parties or unnecessary convolute new the matters proceedings with and not grounds contemplated by the parties or envisaged in the pleadings.” 20. In the instant case the Claimant seeks to join Braeburn Schools Limited as a 2nd respondent on the grounds that it acquired the assets of the Respondent on 30 th December 2022 and that the evading its legal obligations by claiming that it has ceased to exist and operate. The question that arises is whether the intended party is a necessary and proper party to the suit. 21. The Gazette Notice dated 7th October 2022 about the acquisition of the respondent’s assets and business by Braeburn expressly stated that: "All money, debts or liabilities due and owing by the Transferor in respect of the businesses of the Transferor up to the date of the transfer as set out above shall be received and paid by the Transferor. Save as specifically provided in the Agreement, the Transferee will not assume nor is it intended to assume any liabilities incurred by the Transferor with respect to its assets or business up to the date of transfer." RULING IN ELRC CAUSE NO. E571 OF 2020. 7

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22. The Claimant contends that Braeburn Schools Limited has not supplied the agreement entered into between itself and the 1st Respondent. However, Section 3(4) of the Transfer of Businesses Act, Cap 500, provides that the production of the Gazette containing the notice shall be prima facie evidence as against both the transferor and the transferee of the statements contained in the notice. 23. Section 3(1) of the Transfer of Businesses Act, Cap 500, provides that whenever any business or any portion of any business is transferred, with or without the goodwill or any portion thereof, the transferee shall, notwithstanding any agreement to the contrary, become liable for all the liabilities incurred in the carrying on of the business or portion thereof transferred, as from the date of the transfer, including all liabilities for income tax and all other matters connected therewith. 24. However, Section 3(2) of the Transfer of Businesses Act, Cap 500, provides that the liability of the transferee under subsection (1) shall cease immediately notice given in accordance with this section shall have become complete. The proviso to Section 3(2) states that should proceedings be instituted against the transferee before such liability has ceased, the said notice shall be deemed incomplete pending the final determination of such proceedings including all possible appeals, and pending the expiration of all periods during which such appeals may be brought. RULING IN ELRC CAUSE NO. E571 OF 2020. 8

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25. I have perused the Gazetted Notice dated 7 th October 2022. The notice period has long since lapsed. 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. There is no evidence that proceedings were instituted against Braeburn Schools Limited before the liability ceased under the Transfer of Businesses Act. 26. In view of the foregoing matters, I find that Braeburn Schools Limited is not a proper party to these proceedings. The Claimant's claim arises from her employment with the Respondent, Hillcrest Investments Limited, before acquisition of its Assets and business by Braeburn Schools Limited. 27. The Gazette Notice dated 7th October 2022 was clear that the Braeburn was not to assume any liabilities incurred by the transferor before the transfer. The notice was published for all and sundry to take note and the Claimant is deemed to have had constructive notice of its contents. 28. I also find that the application for joinder does not meet the threshold set out in the case of EG v Attorney General; David Kuria Mbote & 10 others (Interested Parties) [2021] eKLR, since Braeburn Schools Limited does not have a personal interest or stake in the matter in question. Its presence will also not enable the Court to resolve all matters RULING IN ELRC CAUSE NO. E571 OF 2020. 9

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in dispute between the Claimant and the Respondent. Braeburn Schools Limited would not suffer prejudice in case of non-joinder. On the contrary, joining Braeburn would vex the parties and convolute the proceedings with unnecessary new matters. 29. 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. In the case of Central Kenya Ltd vs. Trust Bank & 5 others 2000 KECA 367 [KLR] (1), the court stated that amendments should be freely allowed provided that the amendment or joinder will not result in prejudice or injustice to the other party. In this case, enjoining Braeburn Schools Limited would result in prejudice as it would have to defend a claim for which it has no liability, thereby diverting its resources and time from its core business of managing and running its schools. Conclusion 30. I have found that Braeburn Schools Limited is not a proper and necessary party to this suit as the Gazette Notice dated 7th October 2022 was clear that Braeburn Schools Limited did not assume any liabilities incurred by the Respondent before the transfer of the business. The Claimant never challenged that transfer of business and assets or seek the joinder before the effective date of the transfer. The joinder being RULING IN ELRC CAUSE NO. E571 OF 2020. 10

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sought is speculative and unnecessary. Consequently, I dismiss the Notice of Motion dated 16 th January 2026 with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN OPEN COURT AT NAIROBI THIS 28TH DAY OF SEPTEMBER, 2026. ONESMUS MAKAU JUDGE No appearance for Applicant Nduku for Munene for Respondent RULING IN ELRC CAUSE NO. E571 OF 2020. 11

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