1. Edwin Ondieki Aminga (the Claimant) sued Gain Ventures Ltd, Market Dimension Ltd and Bluetti Energy Kenya (the Respondents) alleging unfair and unlawful dismissal and breach of contract.
2. On, Market Dimension Ltd (Dimension) filed a Summons seeking orders:
(i) THAT the Honourable Court be pleased to strike out the name of the 2nd Respondent/applicant from the suit.
(ii) THAT in the alternative, the suit against the 2nd Respondent/applicant be struck out as being an abuse of the court process.
(iii) THAT the costs of this application be awarded to the 2nd Respondent/applicant.
3. The grounds given by Dimension in support of the Summons are that the Claimant had pleaded that at the material time, he was on a probationary contract with Gain Ventures Ltd; the termination letter was issued by Gain Ventures Ltd; there is no cause of action against Dimension as it was not the Claimant’s employer and that Dimension would be greatly prejudiced if it continued as a party to the Cause.
4. The Claimant filed a replying affidavit in opposition to the Summons on 15 October 2024.
5. According to the Claimant, he was engaged by Bluetti Energy Kenya, a human resource outsourcing company and sent to Dimension with whom he signed a probationary contract on 10 July 2023; the contract was taken over upon expiry and extended by Gain Ventures Ltd on or around 21 November 2023, and the striking out of the name of Dimension would be prejudicial and not in the interest of justice.
6. Dimension filed its submissions on 31 December 2024
7. In its submissions, Dimension cited Amon v Raphael Tuck & Sons Ltd (1956) 1 ALL ER 273 and Werrot & Co Ltd & Ors v Andrew Douglas Gregory & Ors (1998) eKLR to urge that it was not a necessary party to the proceedings.
8. The Claimant filed his submissions on 1 February 2025.
9. The Claimant relied on Samuel Wambugu Ndirangu vs 2NK Sacco Society Limited (2019) eKLR and Christine Adot Lopeyio vs Wycliffe Mwathi Pere (2013) eKLR to urge that he had an employment relationship with the 3rd Respondent.
10. The Court has considered the Summons, affidavits and submissions.
11. The Claimant’s submissions were misplaced as they were underpinned by the assumption that the application under consideration was made by the 3rd Respondent. The application was filed by Dimension (the 2nd Respondent).
12. The Court will not address any disputed facts in this Ruling but will refer to the facts on record as evinced through the documents filed.
13. The Claimant entered into a Comprehensive Addendum (Addendum to Employment Contract) with Gain Ventures Ltd. This addendum contract acknowledged that the Claimant had entered into an initial probationary contract with Dimension and that the contract had expired.
14. The addendum contract also indicated that the Claimant was transitioning from Dimension to Gain Ventures Ltd as the new employer and that the expired contract was being extended.
15. At this stage, the Court is not alive to the circumstances and terms under which Gain Ventures Ltd took over a contract between the Claimant and Dimension, a different legal entity and extended the contract. Evidence may unravel that transaction.
16. The action herein implicates a case of outsourcing which is not guided by any statute law currently and thus prone to put employees at a disadvantage as contractual rights are concerned.
17. What the Court can presume pursuant to the definition of employer in section 2 of the Employment Act, 2007, is that Gain Ventures Ltd may fall in the category of agent or factor of Dimension.
18. The Claimant has sought remedies against all the Respondents jointly. Before hearing evidence, the Court cannot tell whether all the Respondents would be liable to the Claimant, if at all.
19. Considering the above and that Dimension may be compensated through costs if it eventually turns out it was not a proper party to the proceedings, the Court declines to allow the Motion.
Orders
20. The Summons dated 24 April 2024 is dismissed with costs in the cause.
2. On, Market Dimension Ltd (Dimension) filed a Summons seeking orders:
(i) THAT the Honourable Court be pleased to strike out the name of the 2nd Respondent/applicant from the suit.
(ii) THAT in the alternative, the suit against the 2nd Respondent/applicant be struck out as being an abuse of the court process.
(iii) THAT the costs of this application be awarded to the 2nd Respondent/applicant.
3. The grounds given by Dimension in support of the Summons are that the Claimant had pleaded that at the material time, he was on a probationary contract with Gain Ventures Ltd; the termination letter was issued by Gain Ventures Ltd; there is no cause of action against Dimension as it was not the Claimant’s employer and that Dimension would be greatly prejudiced if it continued as a party to the Cause.
4. The Claimant filed a replying affidavit in opposition to the Summons on 15 October 2024.
5. According to the Claimant, he was engaged by Bluetti Energy Kenya, a human resource outsourcing company and sent to Dimension with whom he signed a probationary contract on 10 July 2023; the contract was taken over upon expiry and extended by Gain Ventures Ltd on or around 21 November 2023, and the striking out of the name of Dimension would be prejudicial and not in the interest of justice.
6. Dimension filed its submissions on 31 December 2024
7. In its submissions, Dimension cited Amon v Raphael Tuck & Sons Ltd (1956) 1 ALL ER 273 and Werrot & Co Ltd & Ors v Andrew Douglas Gregory & Ors (1998) eKLR to urge that it was not a necessary party to the proceedings.
8. The Claimant filed his submissions on 1 February 2025.
9. The Claimant relied on Samuel Wambugu Ndirangu vs 2NK Sacco Society Limited (2019) eKLR and Christine Adot Lopeyio vs Wycliffe Mwathi Pere (2013) eKLR to urge that he had an employment relationship with the 3rd Respondent.
10. The Court has considered the Summons, affidavits and submissions.
11. The Claimant’s submissions were misplaced as they were underpinned by the assumption that the application under consideration was made by the 3rd Respondent. The application was filed by Dimension (the 2nd Respondent).
12. The Court will not address any disputed facts in this Ruling but will refer to the facts on record as evinced through the documents filed.
13. The Claimant entered into a Comprehensive Addendum (Addendum to Employment Contract) with Gain Ventures Ltd. This addendum contract acknowledged that the Claimant had entered into an initial probationary contract with Dimension and that the contract had expired.
14. The addendum contract also indicated that the Claimant was transitioning from Dimension to Gain Ventures Ltd as the new employer and that the expired contract was being extended.
15. At this stage, the Court is not alive to the circumstances and terms under which Gain Ventures Ltd took over a contract between the Claimant and Dimension, a different legal entity and extended the contract. Evidence may unravel that transaction.
16. The action herein implicates a case of outsourcing which is not guided by any statute law currently and thus prone to put employees at a disadvantage as contractual rights are concerned.
17. What the Court can presume pursuant to the definition of employer in section 2 of the Employment Act, 2007, is that Gain Ventures Ltd may fall in the category of agent or factor of Dimension.
18. The Claimant has sought remedies against all the Respondents jointly. Before hearing evidence, the Court cannot tell whether all the Respondents would be liable to the Claimant, if at all.
19. Considering the above and that Dimension may be compensated through costs if it eventually turns out it was not a proper party to the proceedings, the Court declines to allow the Motion.
Orders
20. The Summons dated 24 April 2024 is dismissed with costs in the cause.