Evans Ocharo v Trustees Bungoma Members Club [2017] KEELRC 1989 (KLR)
The bottom line
#Kenyan employees can sue clubs and unincorporated associations that hired them, as the Employment and Labour Relations Court confirmed in this Bungoma case.
What this practically means
#Executive summary
#Key legal issues
#Whether an unincorporated association can be sued as an employer in an employment Cause
Yes; the Employment Act, 2007 departed from the common law and company law approach and permits the employee to sue the entity described as employer in the contract
Sections 9 and 10(2)(b) of the Employment Act oblige an employer to issue a written contract naming the employer, and section 2 defines employer broadly to include any person, firm or company or its agent, foreman, manager or factor. The Court held this was designed to cure the mischief of employers hiding their legal identities to evade liability, so the entity that issued the appointment letter could be sued.
Whether the constitutional framework on standing affects who may be sued
Articles 22, 258 and 260 expand competency/locus standi so that even unincorporated bodies may sue or be sued, and a statute should not disallow what the Constitution allows
Article 260 defines person to include a company, association or body of persons whether incorporated or unincorporated, and Articles 22 and 258 confer standing to institute constitutional proceedings. The Court reasoned it would be incoherent for such an entity to be sued for constitutional violations but not for contractual or statutory causes of action.
Whether any defect in naming the Respondent was fatal
No; even if the Court were wrong, an amendment would cure the defect
The Court held that even on the Respondent's own argument, any misjoinder or misdescription would not render the suit fatally defective or an abuse of process, since a simple amendment would suffice to bring the correct party before the Court. It accordingly took a contrary position to the many authorities cited by both parties.
Legal principles established
#- Under the Employment Act, 2007 an entity that has entered into a contract of service, including an unincorporated association or its agent, foreman, manager or factor, can be sued by an employee as the employer.
- Articles 22, 258 and 260 of the Constitution expand locus standi so that even unincorporated or unregistered bodies may institute or face legal proceedings.
Court orders
#- 1.The preliminary objection is dismissed; the Court declines the invitation to strike out or dismiss the Cause
- 2.Costs in the Cause
- Jurisdiction invoked
- Employment Act, 2007 (ss. 2, 9, 10(2)(b), 87) and Articles 22, 258 and 260 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Evans Ocharo v Trustees Bungoma Members Club [2017] KEELRC 1989 (KLR)", Case Analysis (2017). Not stated in judgment (Cause filed 23 May 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2017/1989/eng@2017-11-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.