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Court of AppealDismissedCivil Appeal No. 150 of 2015· [2017] KECA 588 (KLR)

Trustees of the Agricultural Society of Kenya v James Gitonga [2017] KECA 588 (KLR)

Court of Appeal
24 March 2017
EGE. M. GithinjiMartha Karambu KoomeM. K. KoomeJMJ. Mohammed
2,354 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed that a party claiming an organisation is registered must produce registration documents, and courts can review awards struck out on unproven legal status.

What this practically means

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Executive summary

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The respondent, a former employee of the Agricultural Society of Kenya dismissed in 2007, filed a claim for wrongful termination before the Industrial Court. Kosgei J. struck out the claim on the preliminary point that the appellant, being neither a legal person nor a corporate body, lacked capacity to be sued, holding that suits against societies must be brought against registered trustees in their individual names. On review under Rule 32 of the Industrial Court Rules, Maureen Onyango, J. set aside that award and ordered the claim heard de novo, finding the registration status of the appellant unresolved since neither party had produced a certificate of registration. The appellant appealed on ten grounds, contending it could only be sued through its registered officials as an unincorporated society registered under the Societies Act, and that the review was unwarranted absent error apparent on the face of the record. The Court of Appeal dismissed the appeal. It held that the appellant's legal status remained a contentious factual issue with legal ramifications: the appellant, which alleged registration under the Societies Act, failed to produce the requisite registration documents, and a mere statement from the bar could not disprove capacity to be sued. Applying its earlier decision in Grace Mwenda Muthuri v Trustees of Agricultural Society of Kenya, the Court found the trial judge was entitled to treat these unresolved circumstances as 'other sufficient reasons' for review. The appeal was dismissed with costs to the respondent, leaving the claim to proceed to hearing on the merits.

Key legal issues

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01

Whether the Industrial Court judge was justified in reviewing the award striking out the respondent's claim

Holding

Yes. The central question of whether the appellant was registered under the Societies Act or the Trustees (Perpetual Succession) Act was never settled with evidence; the appellant, which alleged registration under the Societies Act, failed to produce the requisite registration documents, so the trial judge was entitled to find 'other sufficient reasons' for review.

Reasoning

Rule 32 of the Industrial Court (Procedure) Rules, 2010 permits review on, inter alia, discovery of new matter, error apparent on the face of the record, breach of written law, or other sufficient reasons. The award by Kosgei J. struck out the claim on the assumption that the appellant lacked legal capacity to be sued, yet the parties' pleaded positions on the appellant's registration regime conflicted and no certificate was produced. Since the appellant asserted registration under the Societies Act, the burden lay on it to prove so; a bare statement from the bar could not discharge that burden. The unresolved legal status made the striking out premature and supplied sufficient reason for review.

p. 4
02

Burden of proving the appellant's registration status

Holding

The burden lay on the party alleging registration under a particular regime; the appellant failed to discharge it.

Reasoning

The respondent pleaded that the appellant was a registered trustee under the Trustees (Perpetual Succession) Act, and the appellant's memorandum of reply admitted its registration status, raising an estoppel. Section 33 of the Trustees (Perpetual Succession) Act confers corporate personality with power to sue and be sued in the corporate name. The appellant's counsel instead asserted registration under the Societies Act, but no registration certificate was exhibited. Consistent with this Bench's approach in Grace Mwenda Muthuri v Trustees of Agricultural Society of Kenya (Civil Appeal No. 250 of 2015), the burden shifted to the appellant to prove its asserted registration, which it failed to do.

p. 4

Legal principles established

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  • A party alleging that an entity is registered under a particular statute bears the burden of proving that registration; a mere statement from the bar is insufficient.
  • Where the issue of legal status is a contested factual matter with legal ramifications, a court may properly find 'other sufficient reasons' under Rule 32 of the Industrial Court (Procedure) Rules, 2010 to review an award that struck out a claim on that unproven premise.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent
  2. 2.Ruling of Maureen Onyango, J. allowing review and ordering the claim be heard de novo upheld

Authorities

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Legislation

  • Industrial Court RulesRule 32
  • Industrial Court Procedural Rules 2010Rule 32
  • Societies Act
  • Trustees (Perpetual Succession) Act (Cap 164)Section 33

Cases cited (3)

  • Orero vs. Seko
    [1984] KLR 238
  • Grace Mwenda Muthuri vs. The Trustees of Agricultural Society of Kenya
    Civil Appeal No. 250 of 2015
  • Gitangi & Another vs. Mavoko Distributors Ltd & ano.
    ELR 2005 1EA pg. 65
On appeal from
Industrial Court
Industrial Court Cause No. 1322 of 2010
Jurisdiction invoked
First appeal from the Industrial Court (as then constituted)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Trustees of the Agricultural Society of Kenya v James Gitonga [2017] KECA 588 (KLR)", Case Analysis (2017). Civil Appeal No. 150 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/588/eng@2017-03-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.