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ELRCStruck OutCause filed 15 October 2010 (Memorandum of Claim)· [2013] KEELRC 255 (KLR)

EUNICE MWANYALO v CHAIRMAN, KENYA TRANSPORT ASSOCIATION [2013] KEELRC 255 (KLR)

Industrial Court of Kenya
31 May 2013
1,401 words in judgment
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The bottom line

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A Kenyan employment claim collapsed because the employer was sued by its chairman's title instead of naming the officials or entity actually employing the claimant.

What this practically means

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Executive summary

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The Claimant, employed as a receptionist from 2002 and later as Executive Officer by letters dated 19 November 2008 and 7 May 2010, sued 'The Chairman, Kenya Transport Association' claiming wrongful termination of employment by letter dated 1 September 2010. The Respondent argued the entity cited was unknown in law: the association was registered under the Societies Act during her employment, while Kenya Transporters Association Ltd was incorporated only on 14 September 2011, after the suit was filed. The evidence showed the employment, contract and termination letters were issued on Kenya Transport Association letterheads. The Respondent's witness also confirmed no formal appraisals or warning letters preceded the termination, but the court did not reach the merits. The court framed five issues, including legal capacity, whether termination was established, compliance with section 41 and the evidential burden under sections 43 and 45 of the Employment Act, and remedies. Relying on Justice Maraga's decision in Geoffrey Ndirangu and the authorities cited by the Respondent, the court held that officials of registered societies must be named personally, not merely by title, and that section 41 of the Societies Act applies only to criminal matters. Counsel failed to amend the claim when the objection was raised in the Response and again at the hearing, and the court declined to treat the defect as a mere procedural technicality. The Memorandum of Claim was struck out without an order as to costs, with liberty to file a fresh suit.

Key legal issues

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01

Legal capacity of the Respondent to be sued

Holding

The Respondent, cited as 'The Chairman, Kenya Transport Association', was not a legal entity capable of being sued; the association was registered under the Societies Act and Kenya Transporters Association Ltd was only incorporated on 14 September 2011, after the suit was filed. The officials should have been named personally.

Reasoning

The employment and termination letters were issued on Kenya Transport Association letterheads. The company later incorporated did not exist when the contract was made. The Claimant relied on section 41 of the Societies Act, but that section applies to criminal matters only. Following Maraga J's authority, officials of registered societies must be named personally, not merely by title. Counsel was invited by the plea in the Response to amend but did not, so the misjoinder was fatal.

p. 3
02

Whether the termination and its validity should be determined

Holding

Not determined; the court declined to address the remaining four issues after finding the Respondent had no legal capacity to be sued.

Reasoning

Although the court had framed five issues, including compliance with sections 41, 43 and 45 of the Employment Act and appropriate remedies, the defect in the identity of the Respondent disposed of the Cause at the threshold. The court noted it could have allowed an amendment for a litigant in person had an application been made, but counsel for the Claimant, given opportunities when the plea was raised in the Response and again at the hearing, did not apply to amend.

p. 3

Legal principles established

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  • Suits against registered societies should be brought against the officials named personally, not merely by their titles
  • Section 41 of the Societies Act applies only to suits where criminal offences are in issue, not civil employment claims
  • The same principle on naming officials applies to claims arising within employment contract law
  • Failure to amend the pleadings when the plea on legal capacity was raised cannot be excused; the court declined to treat it as a mere procedural technicality where counsel had opportunity to amend

Court orders

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  1. 1.The Memorandum of Claim is struck out
  2. 2.No order as to costs
  3. 3.Liberty that the Claimant may bring a fresh suit if she so desires

Authorities

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Legislation

  • Societies Actsection 41
  • Employment Actsections 41, 43 and 45

Cases cited (3)

  • Geoffrey Ndirangu & 5 others v Chairman of Mariakani Jua Kali Association & 2 others
    (2005) eKLR
  • Simu Vendors Association v the Town Clerk City Council of Nairobi & 2 others
    (2005) eKLR
  • Eritrea Orthodox Church v Wariwax Generation Ltd
    (2007) eKLR
Jurisdiction invoked
Industrial Court jurisdiction over dispute stated as wrongful termination of employment from the employment contract law claim

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, "EUNICE MWANYALO v CHAIRMAN, KENYA TRANSPORT ASSOCIATION [2013] KEELRC 255 (KLR)", Case Analysis (2013). Cause filed 15 October 2010 (Memorandum of Claim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2013/255/eng@2013-05-31

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