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ELCDismissedNot stated in the judgment· [2018] KEELC 1694 (KLR)

Joel Kipsang Soy & 3 others v County Government of Trans-Nzoia & anotheR [2018] KEELC 1694 (KLR)

Environment and Land Court
31 May 2018
MNMwangi Njoroge
2,273 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that being sued for actions in a former role keeps you in a case, even if that office no longer exists.

What this practically means

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Executive summary

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The 2nd defendant, sued in his capacity as Clerk to the former County Council of Trans-Nzoia, applied under Order 1 Rule 10 of the Civil Procedure Rules to have his name struck out of the proceedings. He argued that the County Council ceased to exist upon the promulgation of the 2010 Constitution, that the capacity in which he was sued was sublimated with the demise of that council, and that his former duties are now vested in a different office within the County Government structure. The plaintiffs opposed, contending that the suit predated the Constitution, that the 2nd defendant was sued for acts done in office, and that striking him out would weaken their case. The court agreed with the 2nd defendant that the powers of a clerk under the repealed Cap 265 and those of a clerk under the County Governments Act No. 17 of 2012 are drastically different, rejecting the claim of a mere departmental transfer. However, applying the necessary-party test drawn from the Kizito M. Lubano decision, the court held that the test applies to the facts as they were at the commencement of the suit, when the cause of action crystallized. Since the proceedings were properly commenced against the 2nd defendant for his acts or omissions relating to the suit land, and he may be the only person able to testify to them, he is a necessary party and cannot depart from the proceedings. The application dated 21/3/2018 was dismissed with costs to the plaintiffs.

Key legal issues

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01

Whether the 2nd defendant is a necessary party notwithstanding the change in his office under the devolved constitutional structure

Holding

The 2nd defendant should continue as a party; the application to strike him out lacks merit

Reasoning

The court accepted that the powers of a Clerk under repealed Cap 265 differ drastically from those of a Clerk to a County Assembly under the County Governments Act, so the 2nd defendant was not merely transferred. However, the proceedings were properly commenced against him in respect of his acts or omissions relating to the suit land. The necessary-party test is applied to the facts as at commencement of the suit, when the cause of action crystallized; if only he can testify to those acts, he is a necessary party and cannot depart from the proceedings.

p. 3
02

Whether the functions of a Clerk under the Local Government Act (Cap 265) survived the 2010 Constitution

Holding

The office of Clerk under the repealed Cap 265 was sublimated with the demise of the former local authority; the clerkship under the County Governments Act is a drastically different office

Reasoning

Section 129 of Cap 265 made the clerk the chief executive of the local authority, while Section 13 of the County Governments Act No. 17 of 2012 creates the Clerk to the County Assembly. Article 176(1) created county governments comprising an assembly and an executive; executive authority vests in the County Executive Committee under Section 34 of the Act. The clerk's former duties are now vested in a different office, so the plaintiffs' assertion of a mere departmental transfer is rejected.

p. 2

Legal principles established

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  • Whether a party is necessary is tested on the facts as they were at the commencement of the suit, when the cause of action crystallized, not at a later stage
  • Tests for a necessary party: there must be a right to relief against such party and it should not be possible to pass an effective decree in their absence

Court orders

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  1. 1.The application dated 21/3/2018 is dismissed
  2. 2.Costs of the application to the plaintiffs
Jurisdiction invoked
Order 1 Rule 10 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joel Kipsang Soy & 3 others v County Government of Trans-Nzoia & anotheR [2018] KEELC 1694 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1694/eng@2018-05-31

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