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Court of AppealDismissedCivil Appeal (Eldoret)

Toppias & 4 others v Bomet County Govrnement & another (Civil Appeal 13 & 22 of 2018 (Consolidated)) [2025] KECA 841 (KLR)

Court of Appeal of Kenya
9 May 2025
JMJ. MativoMGM. GachokaWKW. Korir
4,459 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that group employment lawsuits must strictly follow authorisation rules, but the officers can still file a fresh, properly prepared case.

What this practically means

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Executive summary

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The appellants, representing Bomet County Enforcement Officers, sued the respondents at the Kericho Employment and Labour Relations Court, alleging intended unlawful termination and seeking confirmation, absorption on permanent and pensionable terms, or compensation. The respondents raised a preliminary objection under Rule 9(2) and (3) of the ELRC (Procedure) Rules, 2016, because the consent attached was signed by only 6 claimants and no schedule of claimants' names, addresses and particulars accompanied the statement of claim. The ELRC judge upheld the objection on 15th December 2017 and struck out the suit as incompetent. On appeal to the Court of Appeal at Eldoret, the appellants argued the ruling contravened Article 159(2)(d) of the Constitution and that the striking out was done contrary to the caution in D.T. Dobie. The Court of Appeal dismissed the appeal. It held that the requirements of Rule 9(2) and (3) are mandatory and substantive, going to the competence of the representative suit, and that 'shall' imports a command. It emphasised that the proviso to Rule 9(2) allowed the court to dispense with the letter of authority, but the appellants never invoked it, nor sought leave to file the schedule out of time; a party in default cannot seek refuge under Article 159(2)(d), which is not a magic wand or panacea for procedural shortfalls. The Court declined to determine the lawfulness of the termination, as that issue belonged to the merits and was not determined in the ruling appealed from. It noted the suit was struck out rather than dismissed, leaving the appellants free to file a fresh competent suit. Costs were awarded to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the ELRC judge erred in upholding the preliminary objection and striking out the suit for non-compliance with Rule 9(2) and (3) of the ELRC (Procedure) Rules, 2016
  2. 2.Whether the dismissal of the suit amounted to undue regard to procedural technicalities contrary to Article 159(2)(d) of the Constitution
  3. 3.Whether the requirements of Rule 9(2) and (3) are technicalities or substantive requirements touching on the competence of the suit
  4. 4.Whether the Court should determine the lawfulness of the appellants' termination

Key legal issues

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01

Whether Rule 9(2) and (3) requirements are mandatory

Holding

They are mandatory and substantive; 'shall' imports a command, and non-compliance goes to the competence of the representative suit

Reasoning

The Court noted the compulsory meaning of 'shall' in both sub-rules and held the requirements serve a salutary purpose: giving the respondent notice of the extent of liability and enabling the court to verify consent of those represented. The appellants had a wide proviso under Rule 9(2) allowing the court to dispense with the letter of authority, which they never invoked even during the preliminary objection, and never sought leave to introduce the schedule out of time.

p. 6
02

Whether striking out the suit offended Article 159(2)(d)

Holding

It did not; a party in default who never invoked the available proviso or sought leave cannot invoke Article 159(2)(d)

Reasoning

The Court, following the Supreme Court in Karan vs. Ochieng and Zachariah Okoth Obado, held that 'undue regard' qualifies 'procedural technicalities'; not all procedural stipulations are to be disregarded. The deficiencies here (late, unregularised schedule of 238 persons, consent signed by only 6 claimants without required particulars) were of the appellants' own making and curable through mechanisms they ignored.

p. 6
03

Whether the Court could determine lawfulness of the termination

Holding

No; that issue belongs to the merits of the claim, not the ruling appealed from

Reasoning

The suit was struck out on a preliminary objection for non-compliance with Rule 9(2) and (3); the termination issue was never determined below and could only be canvassed in a final judgment. The Court declined to entertain a completely new ground not urged and determined in the impugned ruling.

p. 4

Legal principles established

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  • Article 159(2)(d) does not excuse litigants who fail, through their own negligence or lack of diligence, to comply with clear rules of procedure, especially where a self-help mechanism such as the proviso to Rule 9(2) was available and never invoked.
  • The requirements of Rule 9(2) and (3) of the ELRC (Procedure) Rules, 2016 - a letter of authority signed by all claimants and an accompanying schedule of claimants' names, addresses, descriptions and particulars of claims - are mandatory and substantive, going to the competence of a representative suit, and are not 'technicalities' disregarded under Article 159(2)(d).
  • The word 'shall' in a statutory provision imports a command or mandate and denotes an obligation.
  • A litigant relying on Article 159(2)(d) must show that in the particular case it was not desirable to pay undue regard to the relevant technicality; the provision applies on a case-by-case basis and is not a panacea for all procedural shortfalls.
  • A distinction exists between a suit that is dismissed (with finality) and one struck out on a technicality, the latter permitting the aggrieved party to file afresh before the same court.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JM
majority

Wrote the judgment

MG
majority

Wrote the judgment

WK
majority

Wrote the judgment

On appeal from
Employment and Labour Relations Court, Kericho
null
Jurisdiction invoked
First appellate jurisdiction over an appeal from the Employment and Labour Relations Court (memorandum of appeal dated 16th February 2018); no specific constitutional provision cited for jurisdiction

Relief refused

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Setting aside the ruling of 15th December 2017 and declaration that the appellants were hired legally with confirmation letters

These prayers presupposed the suit had been heard on merits and a final judgment rendered, when it had been struck out for non-compliance with Rule 9(2); the ground on lawful termination was new and not determined in the ruling appealed against

p. 3

Determination of whether the appellants were lawfully terminated

The issue delves into the merits of the claim which could only be canvassed in a final judgment; the Court declined to determine a new ground not urged or determined in the impugned ruling

p. 4

Costs

Appeal dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Accordingly, we dismiss this appeal with costs to the respondents.
p. 8Final orders - dismissal of appeal with costs
We reiterate that a party who is evidently in default should not seek refuge under Article 159 (2) (d).
p. 6Limits of Article 159(2)(d)
To the contrary, these requirements are substantive and go into the root of dispute because they directly touch on the competence and substance of the suit.
p. 7Mandatory nature of Rule 9(2) and (3)
Article 159 (2) (d) is not a magic wand in the hands of defaulting litigants.
p. 7Article 159(2)(d) not a panacea
While procedure is a necessary component in the administration of justice, substantive justice is the ultimate goal unless the procedural deficiency is suficiently grave to render substantial justice unattainable.
p. 7Balance between procedure and substantive justice

Issues in the judgment

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minor

The memorandum of appeal described the decision appealed against as a 'judgment' when it was a ruling; the Court noted the error

minor

Inconsistent citation dates for James Mangeli Musoo vs. Ezeetec Limited (cited as [2024] eKLR by the 1st respondent and [2014] eKLR by the Court)

minor

The 2nd respondent's counsel referred to Rule 9(2) and (4) while the rule reproduced and applied elsewhere in the judgment is Rule 9(2) and (3)

minor

The appellant's written submissions are dated 22nd November 2012, predating the appeal, an apparent typographical error

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Toppias & 4 others v Bomet County Govrnement & another (Civil Appeal 13 & 22 of 2018 (Consolidated)) [2025] KECA 841 (KLR)", Case Analysis (2025). Civil Appeal (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/841/eng@2025-05-09

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