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ELRCDismissedNot stated in the judgment (application dated 18/4/2018)· [2018] KEELRC 921 (KLR)

Jane Ireri v The University Council,Multi Media University College [2018] KEELRC 921 (KLR)

Employment and Labour Relations Court
2 October 2018
HWHellen Wasilwa
787 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court ruled that suing a university body under the wrong name is a fixable mistake, not a reason to throw out your case.

What this practically means

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Executive summary

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The Respondents filed a preliminary objection dated 18 April 2018 in an employment claim, contending that the Respondent, described as the University Council of Multi Media University College, is a non-juristic person incapable of being sued in its own capacity, and that the amended statement of claim offended Section 20 of the Universities Act as read with Section 3 of the Multi Media University Charter 2013. Counsel for the applicants argued that the only juristic person is Multi Media University itself, the Council being merely a management organ under Section 19 of the Charter, and relied on Maurice Ooko Otieno v Mater Hospital. The Claimant opposed, invoking Mukhisa Biscuit v West End Distributors to argue that a preliminary objection cannot lie where facts must be ascertained, and that the objection should have been raised by way of striking out under Order 2 rule 15 of the Civil Procedure Rules; misdescription of parties is a curable irregularity. The Claimant also cited Republic v Principal Secretary, Ministry of Defence ex-parte George Kariuki Waithaka. The court, Wasilwa J, applied the Mukhisa Biscuit definition and held that determining the correct Respondent - given the institution's history as a JKUAT constituent college before becoming a university in 2013 - requires ascertainment of facts, defeating the objection. Following the Court of Appeal, the court held that misdescription of a party is curable by amendment and causes no miscarriage of justice. The preliminary objection was dismissed with costs to the Claimants.

Key legal issues

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01

Whether the objection that the Respondent is a non-juristic person is a valid preliminary objection

Holding

The objection fails because establishing the correct Respondent requires ascertainment of further facts, which disqualifies it as a preliminary objection

Reasoning

Applying Mukhisa Biscuit, the court held that the question of who the real Respondent ought to be - given the institution's history as a constituent college of JKUAT before becoming a fully-fledged university in 2013 under Legal Notice 155 - depends on facts not ascertainable on pure law. A preliminary objection assumes the facts pleaded are correct; here they are not, so the objection is misconceived.

p. 2
02

Whether misdescription of a party is fatal to the suit

Holding

Misdescription or misjoinder of parties is a curable irregularity that does not cause a miscarriage of justice

Reasoning

Following the Court of Appeal in Republic v Principal Secretary, Ministry of Defence ex-parte George Kariuki Waithaka, the court held that defects in the description of parties are irregularities curable by amendment and do not go to the substance of the claim. The envisaged amendment could cure the defect, so striking out was not warranted.

p. 2

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion is sought
  • A misjoinder, non-joinder or misdescription of parties is an irregularity curable by amendment and does not go to the substance of the matter

Court orders

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  1. 1.The Preliminary Objection dated 18/4/2018 is dismissed/fails
  2. 2.Costs of the Preliminary Objection awarded to the Claimants

Authorities

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Legislation

  • Universities ActSection 20
  • Multi Media University Charter 2013Section 3; Section 19
  • Civil Procedure ActNot specified
  • Civil Procedure RulesOrder 2 rule 15
  • Legal Notice 155 of 2013Not specified

Cases cited (3)

  • Maurice Ooko Otieno vs Mater Hospital
  • Mukhisa Biscuit vs West End Distributors (1965) E.A
    (1965) E.A 701
  • Republic vs The Principle Secretary, Ministry of Defence Ex-Parte George Kariuki Waithaka
    Nairobi High Court Misc Application No. 276 of 2015
Jurisdiction invoked
Original jurisdiction of the Employment and Labour Relations Court over the claim; no specific constitutional/statutory basis stated in the judgment

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, "Jane Ireri v The University Council,Multi Media University College [2018] KEELRC 921 (KLR)", Case Analysis (2018). Not stated in the judgment (application dated 18/4/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2018/921/eng@2018-10-02

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