Paul Muthee Munuhe v Executive Secretary, Seventh Day Adventist Church C.K.C & 3 Others [2016] KEELRC 169 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the judgment overturned the earlier ruling of Warsame J on the capacity of the defendants to be sued
Warsame J's ruling of 30.03.2011 dismissed an application for reinstatement of a striking-out application; he did not determine whether the proper party had been sued, so the judgment did not contradict any prior decision of a court of concurrent jurisdiction.
The court traced the proceedings of 30.03.2011, finding that Warsame J dealt only with an application dated 21.01.2011 seeking reinstatement of a striking-out application dismissed for non-attendance. He found a reasonable cause of action disclosed but made no ruling on whether the defendants were legal persons. Consequently, the later judgment's finding that the defendants did not exist as persons in law created no inconsistency warranting review.
Whether reliance on the certificate of incorporation and the affidavit of Jones Masimba was erroneous
The affidavit was properly on record and the issue was properly pleaded, so the court was entitled to rely on the certificate of incorporation and the pleading; no reviewable error arose.
The applicant contended the court relied on a certificate of incorporation never produced in evidence. The court, quoting its own judgment, noted the preliminary objection was pleaded in the defence and amplified in the supporting affidavit filed on 26.11.2010, and the claimant did not submit on that issue. Since the affidavit and pleading were properly before the court, there was no basis to disregard them.
Whether the suit should have been struck out rather than dismissed to allow a fresh suit
The point was not a ground in the review application, and in any event a fresh suit would be barred by limitation since three years had elapsed from the 29.02.2008 dismissal.
The applicant argued the court should have struck out rather than dismissed the suit. The court held this was neither a prayer nor a ground in the review. Further, the plaintiff pleaded dismissal on 29.02.2008, so the three-year limitation period under section 90 of the Employment Act expired around 29.02.2011, making a fresh suit extremely remote. The application was dismissed with costs.
Legal principles established
#- A party cannot simultaneously pursue review and appeal; the party is bound to elect one process, and concurrent pursuit is an abuse of the court process.
- A review for error apparent on the face of the record fails where there is no previous determination of the same issue by a court of concurrent jurisdiction.
Court orders
#- 1.The application dated 10.10.2016 is dismissed with costs
- Jurisdiction invoked
- Section 16, Cap 234 B and Article 35(2) of the Constitution of Kenya 2010 (as invoked in the application for review)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul Muthee Munuhe v Executive Secretary, Seventh Day Adventist Church C.K.C & 3 Others [2016] KEELRC 169 (KLR)", Case Analysis (2016). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/169/eng@2016-12-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.