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ELRCPartially AllowedNot stated in the judgment (Memorandum of Claim dated 26th October, 2010)· [2014] KEELRC 969 (KLR)

James Gitonga v Trustees of the Agricultural Society of Kenya [2014] KEELRC 969 (KLR)

Industrial Court of Kenya
12 March 2014
MOMaureen Onyango
1,657 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Industrial Court set aside a 2012 award striking out a claim against the Agricultural Society of Kenya and ordered the case heard afresh because the Society's registration status was never proved.

What this practically means

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Executive summary

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The Claimant filed a claim in the Industrial Court against the Agricultural Society of Kenya in 2010. On 9th February 2012, Justice P.K. Kosgei struck out the claim with costs on the ground that the Respondent as sued lacked legal capacity, holding that the claimant should have sued the current registered trustees of the Society in their individual names, and that the Respondent was not a legal person or corporate body. The Claimant applied for review, arguing that the learned Judge made errors of law apparent on the face of the record by holding that the Respondent was not a registered entity, given its admitted registration under the Trustees (Perpetual Succession) Act Cap 164, under section 3(3) of which the trustees become a body corporate capable of suing and being sued. He sought that the award be set aside and an award on the merits delivered, or alternatively a de novo hearing. The Respondent filed a preliminary objection contending, among other grounds, that no error apparent on the face of the record existed, that the alleged error was a matter for appeal rather than review, and that the application was defective for failure to annex the order sought to be reviewed. The parties' grounds were treated as grounds of opposition and canvassed by written submissions. Justice Maureen Onyango noted the difficulty of reviewing an award by a judge no longer sitting, but proceeded. Finding that neither party had produced the Respondent's certificate of registration, the court could not determine whether the Society was registered under the Societies Act or the Trustees (Perpetual Succession) Act, and thus could not find an error apparent on the face of the record. Falling back on other sufficient reasons, the court set aside the award of 9th February 2012 and ordered that the case be heard de novo. The judgment was read in open court on 12th March 2014.

Key legal issues

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01

Whether there was an error apparent on the face of the record warranting review

Holding

The court was unable to determine whether the Respondent was registered under the Societies Act or the Trustees (Perpetual Succession) Act since neither party produced the certificate of registration; the question was one of evidence, not an error apparent on the face of the record

Reasoning

The Claimant alleged the Respondent was registered under the Trustees (Perpetual Succession) Act Cap 164, making it a body corporate under section 3(3), while the Respondent maintained it was registered under the Societies Act. The court perused the record and found no certificate of registration, so it could not resolve which position was correct. Being a matter of evidence, it could not found a review for error on the face of the record, and the court turned instead to the residual ground of other sufficient reasons.

p. 3
02

Whether the absence of the original judge precluded review

Holding

Although the Industrial Court (Procedure) Rules direct that review be made to the judge who made the decision, since Justice Kosgei was no longer sitting the reviewing judge could properly determine the application

Reasoning

The court acknowledged the difficulty of reviewing an award made by a judge no longer sitting, but concluded that the jurisdiction now fell on the presiding judge, who then exercised it on the ground of sufficient reasons.

p. 3

Legal principles established

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  • An unproved factual dispute going to the foundation of an award may constitute a sufficient reason to review and set aside the award
  • Where the judge who made the decision is no longer sitting, the application for review falls to be determined by another judge of the court

Court orders

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  1. 1.The award dated 9th February 2012 is hereby set aside.
  2. 2.The case shall be heard de novo.

Authorities

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Legislation

  • Trustees (Perpetual Succession) Act Cap 164 Laws of KenyaSection 3(3)
  • Industrial Court (Procedure) Rules 2010Order 32
  • Societies Act

Cases cited (7)

  • Orero vs Seko
    [1984] KLR 238
  • Gitahi and Another vs Maboko Distributors Limited and Another
  • In RE Estate of Justus Ezekiel Mbogo (deceased)
    [2008] eKLR
  • Benard Githii vs Kihoto Farmers Limited
    Nairobi HCCC No.32 of 1971 (UR)
  • Dr. Perez Malende Olindo and another vs Diamond Trust Bank of Kenya Ltd
    Nairobi HCCC No. 1230 of 1999
  • Trust Bank Limited vs Geoffrey M. Asanyo
    Nairobi HCCC No.118 of 1998
  • Agricultural Syndicate Limited vs Pavement Bank Limited
    HCCC No.5861 of 2001
Jurisdiction invoked
Industrial Court (Procedure) Rules 2010 - application for review of the court's award

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, "James Gitonga v Trustees of the Agricultural Society of Kenya [2014] KEELRC 969 (KLR)", Case Analysis (2014). Not stated in the judgment (Memorandum of Claim dated 26th October, 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/969/eng@2014-03-12

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