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ELRCOtherNot stated in judgment· [2016] KEELRC 1046 (KLR)

Josephat K. Z. Mwatelah v Technical University of Mombasa Council & 2 others [2016] KEELRC 1046 (KLR)

Employment and Labour Relations Court
24 June 2016
OMO. N. Makau
937 words in judgment
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The bottom line

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Kenya's Employment Court ruled that a university council cannot be sued because it has no legal identity, but allowed the case to continue against the university itself.

What this practically means

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Executive summary

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The Claimant, formerly Vice Chancellor of the Technical University of Mombasa, filed a Suit on 16 May 2016 seeking nullification of his dismissal and an injunction restraining the Respondents from recruiting a new Vice Chancellor, together with a Notice of Motion for interim injunctive relief. The 1st Respondent, the Technical University of Mombasa Council, filed a Preliminary Objection arguing that it lacked legal capacity to be sued in its own name and that the Motion and Suit against it should be struck out with costs. Counsel for the 1st Respondent relied on the High Court decision in Professor Kiema Wangai v Dr. Pamela Tsimbiri, where the Council of Egerton University was struck out for lack of legal capacity. Counsel for the Claimant argued that the objection was a mere technicality, that section 2 of the Employment Act defines employer widely, and that the Council signed the employment contract and, under the University's 2013 Statutes, is the organ empowered to deal with staff employment. He sought to distinguish the Kiema Wangai decision. The court framed a single issue: whether the 1st Respondent is a body corporate capable of being sued. Relying on sections 15 and 20 of the Universities Act, 2012, the court held that only Universities established under the Act possess legal personality; their administrative organs, charters and statutes do not. Following Kiema Wangai, the court held the Suit against the Council to be a nullity. However, since the Claimant evidently intended to sue his employer, the court sustained the proceedings, granting leave to amend the Claim and Motion to substitute the Technical University of Mombasa as 1st Respondent within five days. The conservatory orders of 16 May 2016 remain in force. No costs were awarded, the 1st Respondent not being a legal person.

Key legal issues

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01

Whether the Technical University of Mombasa Council has legal capacity to be sued

Holding

The Council is not a body corporate and the Suit against it is a nullity; however, the court sustained the proceedings by granting leave to substitute the Technical University of Mombasa itself as the proper defendant

Reasoning

Sections 15 and 20 of the Universities Act, 2012 grant legal personality only to Universities established under the Act, not to their administrative organs. The court followed the High Court decision in Professor Kiema Wangai v Dr. Pamela Tsimbiri, holding that bodies set up to assist in administration and governance of a university cannot sue or be sued in their own capacity. Since the Claimant clearly intended to sue his employer, the court invoked its overriding objective of doing justice by permitting amendment rather than striking out the Suit entirely.

p. 2

Legal principles established

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  • Universities established under the Universities Act, 2012 enjoy legal personality, but their administrative organs, including University Councils, do not possess legal personality and cannot sue or be sued in their own names

Court orders

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  1. 1.Preliminary Objection upheld, finding the Suit against the 1st Respondent a nullity
  2. 2.Leave granted to the Claimant to amend the Claim and the Notice of Motion to enjoin and/or substitute the Technical University of Mombasa as the 1st Respondent
  3. 3.Amended Claim and Notice of Motion to be served on the Respondents within 5 days
  4. 4.Amended Notice of Motion to be heard on a date to be fixed
  5. 5.Conservatory orders made on 16.5.2016 to remain in force until the next hearing date
  6. 6.No costs awarded

Authorities

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Legislation

  • Employment Actsection 2
  • Universities Act, 2012sections 15 and 20

Cases cited (1)

  • Professor Kiema Wangai v Dr. Pamela Tsimbiri and 7 others [2014]eKLR
    HCC 304 of 2012
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction under the Employment Act and University Act, 2012 (not expressly cited in judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Josephat K. Z. Mwatelah v Technical University of Mombasa Council & 2 others [2016] KEELRC 1046 (KLR)", Case Analysis (2016). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1046/eng@2016-06-24

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