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ELRCPartially AllowedNot stated (consolidation of four suits agreed on 20.4.2015)· [2016] KEELRC 1868 (KLR)

Were & 3 others v Board of Management Changamwe Secondary School (Cause 434, 435, 436 & 437 of 2014 (Consolidated)) [2016] KEELRC 1868 (KLR)

Employment and Labour Relations Court (implied from claims against school staff; judgment does not state the court)
7 October 2016
OMOnesmus Makau
825 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out claims against individual school board members, confirming the Board of Management—not individuals—must be sued for a public school's official actions.

What this practically means

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Executive summary

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Four claimants brought separate suits against Changamwe Secondary School on 10.9.2014 and later amended them without leave, substituting three individuals in their official capacity as respondents. The suits were consolidated on 20.4.2015. On 8.6.2016 the claimants obtained seven days' leave to amend further and substitute the correct respondent but failed to file within that window. On 30.6.2016 state counsel for the respondents raised a Preliminary Objection on three grounds: improper joinder of the individual respondents; contravention of section 62 of the Basic Education Act; and the claimants' lack of desire to prosecute the claim. The objection was disposed of by written submissions. The court framed two issues: whether the individual respondents should be struck out for misjoinder, and whether the objection had been overtaken by events. It held that under section 62 of the Basic Education Act the Board of Management, a body corporate, is the proper party to be sued on behalf of the school, and it is wrong to isolate individual board members; the claim against the three individuals was therefore struck out. Although the re-amended claims filed on 12.7.2016 were outside the leave window and were described as a desperate attempt to defeat the objection and worthless without leave, the court, invoking Article 159 of the Constitution, extended the leave up to 12.7.2016 and deemed the filings proper. Costs of the Preliminary Objection were awarded to the respondent.

Key legal issues

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01

Misjoinder of individual board members as respondents

Holding

The individual respondents were wrongfully enjoined; the Board of Management, a body corporate under section 62 of the Basic Education Act, is the proper respondent for the school's official acts

Reasoning

The claimants originally sued Changamwe Secondary School, then amended without leave to substitute three individuals in their official capacity. Section 62 of the Basic Education Act vests the power to be sued in the Board of Management, which is a body corporate. It is therefore wrong to isolate individual board members and sue them on behalf of the school, warranting striking out the claim against them.

p. 2
02

Whether the Preliminary Objection was overtaken by the out-of-time re-amended claims

Holding

The re-amended claims filed on 12.7.2016 outside the 7-day leave window were filed without leave and could not cure the defect; however, the court used its discretion under Article 159 to extend the leave retrospectively and deem them properly filed

Reasoning

The claimants missed the 7-day window granted on 8.6.2016 and filed the re-amended claims only on 12.7.2016, after the Preliminary Objection was raised. The court held these were a desperate attempt to defeat the objection and worthless without leave, but in the spirit of Article 159 extended the leave to 12.7.2016 and deemed the filings proper.

p. 2

Legal principles established

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  • Under section 62 of the Basic Education Act, the correct defendant for acts of a public school is the Board of Management as a body corporate, not individual board members sued personally for official acts
  • Re-amended pleadings filed outside the time window granted by the court, and without leave, are a nullity

Court orders

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  1. 1.The Preliminary Objection is allowed to the extent that the claim against the three individual respondents is struck out
  2. 2.The leave to amend claim granted on 8.6.2016 is extended up to 12.7.2016 and the Re-amended claims filed on 12.7.2016 are deemed as properly filed
  3. 3.Costs of the Preliminary Objection to the respondent

Authorities

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Legislation

  • Basic Education Actsection 62
  • Government Proceedings Actsection 4
  • Constitution of KenyaArticle 50(1)(c)
  • Constitution of KenyaArticle 159
  • Civil Procedure Actsection 100
  • Civil Procedure RulesRule 10

Cases cited (2)

  • Patrick Wanyonyi Khaemba vs Secretary TSC and Zahara Bashir Sheikh
    [2014] eKLR, Petition 231 of 2013
  • Institute for Social Accountability & Another vs Parliament of Kenya & 3 others
    [2014] eKLR
Jurisdiction invoked
Not expressly stated; the court proceeds under its inherent/original jurisdiction and Article 159 of the Constitution

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, "Were & 3 others v Board of Management Changamwe Secondary School (Cause 434, 435, 436 & 437 of 2014 (Consolidated)) [2016] KEELRC 1868 (KLR)", Case Analysis (2016). Not stated (consolidation of four suits agreed on 20.4.2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2016/1868/eng@2016-10-07

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