Kimemia v Kidde – Fenwal INC & another [2023] KEELRC 3066 (KLR)

Kimemia v Kidde – Fenwal INC & another (Cause 111 of 2018) [2023] KEELRC 3066 (KLR) (30 November 2023) (Ruling)

Neutral citation: [2023] KEELRC 3066 (KLR)

Republic of Kenya

In the Employment and Labour Relations Court at Nairobi

Cause 111 of 2018

J Rika, J

November 30, 2023

Between

Dominic Mwangi Kimemia

Claimant

and

Kidde – Fenwal INC

1st Respondent

United Technologies Corporation Climate Control and Security

2nd Respondent

Ruling

1. On 11th July 2023, the 2nd Respondent was struck out of the proceedings, on the ground that the other Parties could not agree if the 2nd Respondent was a corporate entity.

2. Although the record indicates that the Law Firm of Coulson Harney LLP, filed Memorandum of Appearance dated 21st February 2018 for both Respondents, Mr Deya from the said Law Firm, indicated on 11th July 2023, that his Law Firm was only representing the 1st Respondent.

3. The Claimant gave evidence and closed his case on 11th July 2023. The 1st Respondent’s witness was said to reside in a different time-zone, and was scheduled to be heard on 16th November 2023 at 4. 00 p.m. Kenyan time.

4. The Claimant subsequently filed an Application dated 31st July 2023, asking for reinstatement of the 2nd Respondent to the proceedings, and grant of leave to amend the name of the 2nd Respondent, to read United Technologies Limited.

5. The Application is founded on the Affidavit of the Claimant’s Advocate, Muita Zachariah Kiplangat sworn on 31st July 2023.

6. Mr. Kiplangat explains that the Law Firm of Coulson Harney LLP, is on record for both Respondents. It has been acting for both. It was only on 11th July 2023, that the Advocates for the Respondents denied having instructions from the 2nd Respondent. The Claimant’s contract of employment was executed between him, and an entity called United Technologies Corporation. This entity is the parent company to the 1st Respondent. The Statement of Response on record is filed by both Respondents, represented by the Law Firm of Coulson Harney LLP. Striking out of the 2nd Respondent, was as a result of misrepresentations made to the Court by the Respondents’ Advocates.

7. Senior Human Resource Manager, Alan Nasuti, swore an Affidavit in reply, on 22nd September 2023. It is denied that the 2nd Respondent was struck out after the Respondents misrepresented the status of the 2nd Respondent to the Court. The Claimant was employed by the 1st Respondent as a Sales Manager. The 1st Respondent is an independent company. Previously, the 1st Respondent was a subsidiary of United Technologies Corporation in the ‘’ Climate Controls & Security’’ division. There was no entity known as ‘’United Technologies Climate Control & Security.’’ The 1st Respondent challenged joinder of the 2nd Respondent on this ground. The Court acted properly in striking out the party described as ‘’ United Technologies Climate Control & Security’’ from the proceedings. There is no merit to the Claimant’s Application.

The Court Finds: - 8. The Memorandum of Appearance dated 21st February 2018, was filed by the Law Firm Coulson Harney LLP, representing the 2 Respondents.

9. The 2nd Respondent is named as ‘’United Technologies Corporation [UTC] Climate Control & Security,’’ in the Statement of Claim, as well as in the Memorandum of Appearance and the Statement of Response.

10. Based on the explanation given by Alan Nasuti in the Replying Affidavit, the 2nd Respondent’s name is ‘’United Technologies Corporation.’’ Climate Controls & Security has been clarified to be a division within the Corporation.

11. It is confirmed that the Law Firm of Coulson Harney LLP appears for both Respondents. It has been confirmed that the 2nd Respondent is a corporate entity, the only mistake made by the Claimant, being in the inclusion of the division in which the 2nd Respondent operates, in the 2nd Respondent’s name. The 1st Respondent states it is an independent entity which employed the Claimant. It however acknowledges that it was a subsidiary of United Technologies Corporation. The Claimant wishes to pursue remedy against both the subsidiary and the parent company, and for purposes of determining who was his Employer, under Section 2 of the Employment Act, the parent company is a necessary party.

12. The Application filed by the Claimant dated 31st July 2023 is well-founded in fact and law. The orders discharging the 2nd Respondent from the proceedings cannot be sustained. The 2nd Respondent is a necessary Party to the Claim.

13. There is no reason why amendment of the Statement of Claim, should not be granted.It Is Ordered: -a.The 2nd Respondent is reinstated to the Claim, as a Co-Respondent.b.The 2nd Respondent’s name is amended to read ‘’ United Technologies Corporation.’’c.Costs in the cause.d.Hearing date for the Respondents’ case to be allocated at the Registry.

DATED, SIGNED AND RELEASED TO THE PARTIES ELECTRONICALLY AT NAIROBI, UNDER PRACTICE DIRECTION 6[2] OF THE ELECTRONIC CASE MANAGEMENT PRACTICE DIRECTIONS, 2020, THIS 30TH DAY OF NOVEMBER 2023. JAMES RIKAJUDGE