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ELCDismissedPetition No 13 of 2018· [2022] KEELC 1341 (KLR)

David K Kaitany & 18 others v Head Teacher/ Secretary the School Management Committee Ng’onlong Primary School &10; others [2022] KEELC 1341 (KLR)

Environment and Land Court
23 February 2022
2,046 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court ruled that school officials cannot be personally sued for land disputes involving their school when the Board of Management is already a party.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (S.M. Kibunja, J) delivered virtually on 23 February 2022 in a constitutional petition concerning alleged continuing construction of classrooms on land parcel Ewalel/Serutunin/632. The petitioners moved by Notice of Motion dated 6 May 2021 seeking leave to amend the petition to join Charles R Keitany (Principal of Ng'olong Secondary School) and Andrew Yatich Cherubet (Chairman of the school's Board of Management) as respondents, contending they were personally furthering the construction on the disputed portion identified in a surveyor's report of 26 February 2019 as overlapping with title Baringo/Kapchomuswo 'A'/2100. Eight respondents opposed through grounds of opposition, arguing the application was an afterthought, defective, brought under inapplicable Civil Procedure Rules provisions, and delayed. The court framed two issues: whether the threshold for joinder was met, and costs. Applying Order 1 Rule 10(2) of the Civil Procedure Rules and the necessary/proper party tests in Sofia Muciku Jotham, Meme v Republic and County Government of Kiambu v Senate, and relying on section 59 of the Basic Education Act which vests management of a school's physical facilities in its Board of Management, the court held the two officials were not necessary parties: the school was already competently represented by its Board, no relief could flow from the individuals personally, and the petition could be effectually determined without them. The application was dismissed with costs abiding the outcome of the petition.

Key legal issues

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01

Whether the Principal and Board of Management chairman of Ng'olong Secondary School are necessary parties to the petition over construction on the suit land

Holding

The application for joinder was dismissed; the two individuals are not necessary parties as the school is competently represented by its Board of Management and no relief could flow from them personally.

Reasoning

The court applied Order 1 Rule 10(2) and the tests for necessary parties (right of relief against the party; inability to pass an effective decree absent them). Section 59 of the Basic Education Act vests management of a school's physical facilities in the Board of Management, which is already a party. Following Beatrice Tilitei and J.N. v Board of Management, St. G School, individuals cannot be dragged into proceedings in their personal capacities for decisions of a legal entity. There was nothing showing the proposed respondents acted outside their mandate.

p. 4
02

Costs of the joinder application

Holding

Although the petitioners lost and would ordinarily pay costs, the court directed that costs abide the outcome of the petition.

Reasoning

The court recognised the general rule that an unsuccessful applicant bears costs, but in the circumstances of the land dispute considered it appropriate that costs of the application await the final determination of the main petition rather than being awarded immediately.

p. 4

Legal principles established

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  • Joinder of parties is governed by Order 1 Rule 10(2) of the Civil Procedure Rules: a person whose presence is necessary to enable the court effectually and completely to adjudicate upon and settle all questions may be added at any stage.
  • Under the Basic Education Act, a school's Board of Management is the legal entity responsible for the institution's physical facilities, and a Principal or Board chairman cannot be sued personally for decisions of the Board absent personal liability.

Court orders

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  1. 1.The petitioners' application for joinder dated the 6th May 2021 is dismissed
  2. 2.Costs of the application to abide the outcome of the petition

Authorities

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Legislation

  • Constitution of Kenya (Protection of Fundamental Rights and Freedoms) Practice and Procedure Rules, 2013
  • Basic Education Actsections 55, 56, 57, 58, 59
  • Civil Procedure RulesOrder 1 Rule 10(2)

Cases cited (8)

  • Central Kenya Ltd vs Trust Bank Limited and 5 others
    [2000] eKLR
  • Sofia Muciku Jotham (Suing as the Legal Representative of the Estate of Jotham Gikunju Karu) v Lucy Waruguru (Sued as the Legal Representative of the Estate of Judy Kori Nyaga) & another
    [2021] eKLR
  • Meme Vs Republic
    [2004] 1 EA 124
  • County Government of Kiambu & another v Senate & others
    [2017] eKLR
  • Beatrice Tilitei & anor vs William Kibet Chiboi
    (2017) eKLR
  • J.N. and 5 others vs. Board of Management, St. G School Nairobi and Another
    (2017) eKLR
  • BENARES BANK LTD. V. BHAGWANDAS
  • Deputy Commissioner of HARDOI V. RAMA KRISHNA
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over a constitutional petition concerning land parcel Ewalel/Serutunin/632

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, "David K Kaitany & 18 others v Head Teacher/ Secretary the School Management Committee Ng’onlong Primary School &10; others [2022] KEELC 1341 (KLR)", Case Analysis (2022). Petition No 13 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1341/eng@2022-02-23

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