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ELRCStruck OutCause dated 26th October 2010 (not fully stated in judgment)· [2014] KEELRC 1163 (KLR)

Grace Mwenda Munjuri v Trustees of the Agricultural Society of Kenya [2014] KEELRC 1163 (KLR)

Industrial Court of Kenya (Employment and Labour Relations Court)
17 April 2014
825 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan employment court struck out a claim because it sued a society by name instead of suing its named officials.

What this practically means

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Executive summary

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The respondent filed a notice of preliminary objection dated 4th March 2014 seeking striking out of the claim filed on 26th October 2010 on the ground that it was defective. Mutua Advocate for the respondent argued that the claimant had sued the Trustees of the respondent society, yet suits against a society must be brought against its officers in their proper names, relying on the Gitonga and Simu Vendors Association decisions. Mbaluto Advocate for the claimants countered that the objection did not meet the Mukisa Biscuits test of a pure point of law, that the respondent was incorporated under the Perpetual Succession Act, Cap 164 with capacity to sue and be sued, and that the defect was a mere technicality curable under Article 159 of the Constitution given the respondent's admissions in the defence. The court held that a preliminary objection must raise a pure point of law on assumed facts, and that standing is a legal issue to be determined at the earliest opportunity. Applying settled law that a society is not a legal person and must sue or be sued through its named officials, and that titles like Chairman, Secretary or Treasurer are not legal persons, the court found the non-disclosure of the persons behind the respondent was an error curable only by striking out the suit. Standing was held to go to the root of the matter and not curable by any constitutional provision. The preliminary objection was allowed and the claim struck out, with each party bearing their own costs.

Key legal issues

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01

Whether the suit against a society without naming its officials is defective

Holding

The suit was defective; the respondent, being a society and not a legal person, had to be sued through its named officials, and titles alone are insufficient

Reasoning

The court applied settled law that a society lacks legal personality and must be sued through its officials, who must be named. Titles such as Chairman, Secretary or Treasurer are not legal persons. Where trustees exist, they are known persons against whom successful orders may be executed, not the respondent as currently stated. Following the Wang'ondu decision, non-disclosure of the persons behind the respondent was an error curable only by striking out the suit.

p. 2
02

Whether Article 159 of the Constitution could cure the defect

Holding

No; standing is not a mere technicality but goes to the root of the matter and cannot be cured by any constitutional provision

Reasoning

The court held that standing before court touches the substance of the claim and is a fundamental flaw. Suing a wrong party is an injustice not curable by any constitutional provision, from the preamble to the last Article. Determining standing at the earliest stage avoids unnecessary costs and confusion of the real issues, so the objection was a proper point of law to be determined first.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law on the assumption that all facts pleaded are correct and cannot involve ascertainment of facts or exercise of judicial discretion
  • A society not being a legal person cannot sue or be sued in its own name; it must sue or be sued through its named officials

Court orders

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  1. 1.Preliminary objection raised by the respondent allowed
  2. 2.Claim struck out
  3. 3.Each party to bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 159
  • Perpetual Succession ActCap 164

Cases cited (5)

  • James Gitonga versus Trustees of Agricultural Society, Cause no. 1322 of 2010
  • Simu Vendors Association versus Town clerk of City council of Nairobi et al, Misc. Appl. 427 of 2005
  • Mukisa Biscuits Manufacturing Ltd versus West End Distributors Ltd
    [1969] EA 697
  • Voi Jua Kali Association –vs- Sange and others
    (2002) 2 KLR 474
  • John Githinji Wang'ondu versus Raphael Gitau Njau et al, Civil Appeal No. 241 of 1997
    [1997] LLR 6700
Jurisdiction invoked
Article 159 of the Constitution invoked by the claimant; original employment and labour relations jurisdiction

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, "Grace Mwenda Munjuri v Trustees of the Agricultural Society of Kenya [2014] KEELRC 1163 (KLR)", Case Analysis (2014). Cause dated 26th October 2010 (not fully stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2014/1163/eng@2014-04-17

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