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ELRCDismissedPetition No 69 of 2014· [2016] KEELRC 749 (KLR)

George M. Muchai v Francis Atwoli & 17 others [2016] KEELRC 749 (KLR)

Employment and Labour Relations Court
18 August 2016
ANAbuodha Jorum Nelson
4,188 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 a union could not take over a deceased official's petition because lawsuits tied to a person's official role end when they die.

What this practically means

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Executive summary

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By a Notice of Motion dated 9th April 2015, the 10th Interested Party, the Kenya Union of Employees of Voluntary and Charitable Organizations (KUEVACO), sought leave to prosecute to conclusion a constitutional petition filed by a petitioner who had been assassinated. The petition, filed on 5th November 2014, sought declarations that COTU(K) officials had violated constitutional rights through improper financial management, their removal from office, forensic audits of COTU(K)'s accounts and properties, freezing of bank accounts, and directions to investigative bodies to commence criminal investigations. The applicant argued the matter was of great public interest, that the cause of action survived the deceased, and that as a trade union whose members included COTU employees it had a direct stake. Counsel for the respondents and other interested parties opposed, submitting that Order 24 of the Civil Procedure Rules did not apply to constitutional petitions, that only a legal representative with letters of administration could continue a deceased's suit, and that the cause of action, being founded on the petitioner's official capacities, did not survive him. The court framed two questions: whether the causes of action and remedies could survive the petitioner, and whether an interested party could continue the litigation. It held that the petitioner had sued in his elective official capacities as Deputy Secretary General of COTU and General Secretary of the Bakery, Confectionery, Food Manufacturing and Allied Workers Union, and that no prayer sought any personal benefit transmissible to his estate; the petition therefore could not continue. It further held that an interested party's role is limited to assisting the court, not prosecuting litigation, and that KUEVACO should have sought joinder as co-petitioner or file a fresh petition. The application was dismissed with costs on 18th August 2016.

Key legal issues

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01

Whether the causes of action pleaded in the petition survived the death of the petitioner

Holding

The causes of action did not survive because the petitioner sued in his official capacity as Deputy Secretary General of COTU(K) and General Secretary of the Bakery, Confectionery, Food Manufacturing and Allied Workers Union, and no prayer sought damages or compensation personal to him or his estate.

Reasoning

Section 2(1) of the Law Reform Act provides that causes of action subsisting against or vested in a deceased person survive for the benefit of the estate. The court examined the reliefs sought in the petition, all of which concerned forensic audits of COTU(K)'s affairs and sanctions against office holders, and found no personal benefit capable of transmission to the estate. Because the petitioner litigated in elective official capacities which terminated on death, the litigation could not be continued for the benefit of his estate.

p. 7
02

Whether an interested party has capacity to take over and prosecute a petition commenced by another person

Holding

No. An interested party's role is limited to assisting the court; the applicant was neither a legal representative of the deceased nor a co-petitioner and could not don the 'interested party' hat to continue litigation it did not commence.

Reasoning

The court analysed the function of interested parties, noting they join because issues of public significance arise and may submit specialist information to assist the court. Such a party is not a cheer leader or supporter and cannot prosecute a petition. The applicant should have sought joinder as a co-petitioner at the appropriate time if the issues directly concerned it; instead it chose interested party status, which lapses when the litigation ends. Its remedy is to file a fresh petition.

p. 8

Legal principles established

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  • Only causes of action that survive a deceased person can be continued, and only by the legal representative of the deceased.
  • Litigation initiated by an office holder in an official capacity does not survive the holder's death or removal, since the office is co-terminus with the holding of the position.
  • The role of an interested party is limited to assisting the court with a perspective or expertise, not to prosecuting the litigation.

Court orders

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  1. 1.The Notice of Motion dated 9th April 2015 by the 10th Interested Party seeking to prosecute the petition to conclusion is dismissed
  2. 2.Costs of the application awarded against the applicant

Authorities

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Legislation

  • Labour Relations ActFifth Schedule, paragraph 1(1); section 2(a); section 37(2); Part V
  • Civil Procedure RulesOrder 24, including Order 24(3)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules2013 Rules
  • Law Reform Actsection 2(1)
  • Law of Succession Actsection 56(2)
  • Constitution of KenyaArticles 10, 36, 40, 41, 48, 50
  • Trade Unions (Accounts) RegulationsGeneral
Jurisdiction invoked
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013 (petitions for enforcement of constitutional rights); Labour Relations Act, 2007 context

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, "George M. Muchai v Francis Atwoli & 17 others [2016] KEELRC 749 (KLR)", Case Analysis (2016). Petition No 69 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/749/eng@2016-08-18

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