REPUBLIC OF KENYA
IN THE EMPLOYMENT AND LABOUR RELATIONS COURT
AT NAIROBI
PETITION NO. E232 OF 2025
(Before Hon. Justice Dr. Jacob Gakeri)
EUNICE MADZO MWADZOYA…….……………………....….. PETITIONER
VERSUS
UNITED STATES INTERNATIONAL UNIVERSITY AFRICA & ANOTHER………………….………………………………….…. RESPONDENT
RULING
Before the Court for determination is the applicant’s motion dated 20th February, 2026 filed on 23rd February, 2026 seeking orders that;
1. The 2nd Respondent’s name be struck out of the Petition dated 7th November, 2025.
2. The Petition against the 2nd Respondent be struck out in limine.
3. The Petition be amended accordingly.
4. Costs of this Application be borne by the Petitioner.
The motion was expressed under section 3 and 12 of the Employment and Labour Relations Court Act, Rule 47 of the Employment and Labour Relations Court (Procedure) Rules and Rule 5 (a) (1) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 and based on the grounds outlined on its face and the Supporting Affidavit of Ivy Mwai sworn on 20th February, 2026.
The applicant’s case is that there was no employer-employee relationship between the Petitioner and the 2nd Respondent at any point and the court had no jurisdiction to entertain the petition against the 2nd Respondent.
The affiant deposed that the Petition against the 2nd Respondent disclosed no reasonable cause of action against it in that it had no contractual engagements with persons engaged by the 1st Respondent, did not instruct the Petitioner to perform or not perform her duties, take disciplinary action against her or terminate her contract of employment.
1st Respondent’s case
By a response dated 10th March, 2026, the 1st Respondent averred that Petition herein had no basis and ought to be struck out but if the court proceeded to hear and determine it on merits, all the parties, as currently constituted ought to be heard.
2nd Respondent’s case
In her Replying Affidavit sworn on 24th March 2026, the Petitioner deponed that applicant’s Notice of Motion was the 2nd Respondent’s attempt to escape liability since it influenced the decision to terminate the petitioner’s servicers.
That the 2nd Respondent had partnered with the 1st Respondent to run the Mastercard Foundation Scholars Program was privy to all financial decisions, the program the petitioner served under, and the petitioner had identified the reliefs sought against each Respondent.
The affiant deponed that the two entities acted as one and the petitioner attended a meeting by auditors while on maternity leave and took up the role after leaving the 1st Respondent, dealt with scholar’s concerns, exercised control of the Petitioner’s services among other reasons the continued participation of the 2nd Respondent in the proceedings was necessary.
Applicants’ submissions
The applicant’s counsel submitted that the applicant was a stranger to the instant suit as it was not a party to the termination of the Petitioner’s employment, there was no employer/employee relationship between the parties and no trial was necessary to determine the issue.
According to Counsel, there was no contract of service between the Petitioner and the 2nd Respondent and it was not privy to the contract of employment and no rights or duties arose against the 2nd Respondent.
Reliance was placed on Arisa v. Kipkebe Ltd (2024) KEELRC 1232 (KLR) Ruto v Cherono (2024) KEHC 10947 (KLR) and Samuel Wambugu Ndirangu v. 2NK Sacco Ltd (2019) KEELRC 2546 (KLR), to urge that there was no employer/employee relationship between the Petitioner and the 2nd Respondent.
Further reliance was placed on the decision in Umbertoh Daniel Nungari v Wild beast Camp & Travels Ltd (2019) EKLR, Counsel submitted that the 2nd Respondent was a founding partner without more.
Reliance was further placed on the decision in Cherogony v Another (2022) KEELRC 14645 (KLR) in the place of a donor.
It was submitted that administration, supervision, discipline and ultimate decision making resided with the 1st Respondent and the Petitioner had no sustainable claim against the 2nd Respondent.
Reliance was further placed on Boniface Omondi v Mathare Youth Sports Association & another (2021) KEELRC 671 (KLR) on the test of who was a necessary party to a suit to submit that the 1st and 2nd Respondents were bound by a separate contractual arrangement which absolved the 2nd Respondent from liability from contracts entered into by the 1st Respondent.
Counsel urged the court to rely on the decision in Kamurasi v Absa Bank Kenya RLC & another (2023) KEELRC 3229 (KLR) and Apex International Ltd & another v Kenya Anti-Corruption Commission (2012) eKLR, to reinforce the submission that the 2nd Respondent was improperly enjoined in these proceedings and the Petitioner had no sustainable case against it and its presence served no purpose. Counsel urged the court to strike out the petition against the 2nd Respondent with costs.
Respondent’s Submissions
Counsel submitted that matters the pleaded by the Petitioner ought to be heard on merit and determined substantively and the 2nd Respondent was a necessary party citing the decision in Motaung v Sama Source Kenya EPZ t/a Sama & 2 others (2023) KEELRC 320 (KLR) upheld by the Court of Appeal in Meta Platforms Inc & 2 others v Motaung & 201 others (2024) KECA 1262 (KLR).
Reference was made to the investigation by Deloitte South Africa when the Petitioner was on maternity leave, a fact the 2nd Respondent had admitted. The one Muparadzi’s demands were met by the 1st Respondent and the program team was suspended. Counsel further submitted that the Petitioner had sought declaratory Orders and Compensation against the 2nd Respondent based on the role it played and the 2nd Respondent was attempting to escape liability at the interlocutory stage.
Counsel submitted that the Petitioner’s contract of service implicated the 2nd Respondent and it was disingenuous for it to allege that it played no role. That the 2nd Respondent exercised effective control and direction over the Petitioner’s work, supervision, and reporting lines, which established a de facto relationship between the parties. That the Petitioner’s input was essential to enable the 2nd Respondent attain its goal at the 1st Respondent’s institution and the Petitioner’s claims against the 2nd Respondent were of a constitutional nature and its continued participation in these proceedings was necessary.
Analysis and determination
The singular issue for determination is whether the 2nd Respondent’s Notice of Motion dated 20th February 2026 is merited.
While the 2nd Respondent maintained that it ought not to have been joined in this suit as it had no contractual relationship with the Petitioner, the Petitioners position was that the 2nd Respondent was a necessary party in the matter and the motion should not be allowed.
The 2nd Respondent’s response dated 10th March, 2026 left no doubt that
it was uncomfortable with the status quo being maintained.
The principles that govern joinder of parties to a suit is well settled. Rule 5 of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 are explicit that;
(a) Where the Petitioner is in doubt as to the persons from whom redress should be sought, the Petitioner may join two or more Respondents in order that the question as to which of the Respondent is liable and to what extent may be determined as between all parties.
(b) A Petition shall not be defeated by reason of the joinder or non-joinder of parties and the court may in every proceeding deal with the matter in dispute.
Order 1 Rule 3 of the Civil Procedure Rules contains a similar provision. Needless to belabour, the law is cognizant of the fact that a Petitioner may be in doubt as to whom two or more persons is liable for the alleged or threatened violations or may sue a wrong party among others.
To ensure that justice is done to all parties, the court may either on its won motion or upon application of either party order that the name of any party improperly joinded be struck out; and the name of any person who ought to have been joined or whose presence before the court may be necessary in order to enable the court adjudicate upon and settle the matter be added as provided by Rule 5 (d) of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules and Order 1 Rule 10(2) of the Civil Procedure Rules.
Clearly, the court may suo motu or on application as in the instant case strike out or add a party to a suit. However, the court’s power to do so is discretionary and ought to be exercised judicially not capriciously. See Givicon Ltd v Kivuwatt Ltd & 2 others (2015) eKLR.
In DT Dobie and Co (K) Ltd v Joseph Mbaria Muchina & another (1982) KLR J Madan J A (as he then was) held as follows:
“The power to strike out should be exercised only after the court has considered all the facts but it must not embark on the merits of the case itself as this is solely reserved for the trial judge. On an application to strike out pleadings, no opinion should be expressed as this would restrict the freedom of the trial judge in disposing the cause.”
The learned judge emphasized that in determining an application to strike out, the court ought to act cautiously and carefully as it is obligated to consider all facts without trying the case.
In this case, that 2nd Respondent is seeking the striking out of its name from the suit on the premises that there was no employment relationship between it and the Petitioner and that the 1st and 2nd Respondent had a separate and distinct contractual relationship, which, according to the 2nd Respondent was neither relevant nor connected to the dispute before the court.
It is clear that the 2nd Respondent is basing the instant application on its place in the factual matrix, an evidential matter and the Petitioners suit is grounded on the premises that both Respondents were blameworthy and thus liable for the alleged violations.
A panoramic view of the case reveals that the factual matrix can only be fully appreciated by hearing all the parties to the suit.
Granting the Order sought by the 2nd Respondent at this early stage would mean that its role in the dispute would not be fully appreciated, and in the court’s view would be premature.
The court is in agreement with the 1st Respondent’s response dated 10th March, 2026 that the suit ought to proceed as currently constituted in the interests of justice.
The upshot is that the court is not persuaded that allowing the 2nd Respondent’s application at this stage would be in the interests of justice.
Consequently, the 2nd Respondent’s Notice of Motion dated 23rd February, 2026 is disallowed with no Orders as to cost.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI
ON THIS 27TH DAY OF MARCH, 2026
DR. JACOB GAKERI
JUDGE
ORDER
In view of the declaration of measures restricting court operations due to the COVID-19 pandemic and in light of the directions issued by His Lordship, the Chief Justice on 15th March 2020 and subsequent directions of 21st April 2020 that judgments and rulings shall be delivered through video conferencing or via email. They have waived compliance with Order 21 Rule 1 of the Civil Procedure Rules, which requires that all judgments and rulings be pronounced in open court. In permitting this course, this court has been guided by Article 159(2)(d) of the Constitution which requires the court to eschew undue technicalities in delivering justice, the right of access to justice guaranteed to every person under Article 48 of the Constitution and the provisions of Section 1B of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) which impose on this court the duty of the court, inter alia, to use suitable technology to enhance the overriding objective which is to facilitate just, expeditious, proportionate and affordable resolution of civil disputes.
DR. JACOB GAKERI
JUDGE
| ELRC NAIROBI PETITION E232 OF 20252 OF 9 |