Okiya Omtatah Okoiti v Ministry of Health & 5 others;Pharmacy & Poisons Board (Interested Party) [2019] KEELRC 1996 (KLR)
The bottom line
#Kenya's Employment Court ruled a company official can defend a case with a signed authority letter, even without a board resolution.
What this practically means
#Executive summary
#Key legal issues
#Whether a board resolution is a prerequisite for a juristic person's officer to swear a replying affidavit in defence of litigation
No. The requirement of a board resolution applies to commencement of proceedings by a juristic person; where the juristic person has been sued and its deponent holds a letter of authority signed by the Chairperson and substantive Director, the affidavit stands unless its validity is disproved. Requiring the directors under threat of discipline to swear for the body would itself create a worse conflict of interest.
The Court accepted the chain of authorities requiring board resolutions for instituting proceedings, but distinguished the present scenario: the 6th Respondent did not commence litigation, it was sued by the Petitioner alongside its Director and Deputy Directors, who were themselves the persons the Petitioner wanted disciplined. It would be illogical and a more serious conflict of interest for them to swear the affidavit. The deponent deposed to due authorisation and attached a letter of authority that the Petitioner did not disprove, so mere assertion of lack of capacity in a rival affidavit was insufficient.
Whether the Deputy Director's affidavit evidenced a conflict of interest disqualifying it
No. Having the Deputy Director, authorised by the Chairperson and substantive Director, swear the affidavit was less conflicted than having the Directors themselves swear it, and the authority letter displaced the challenge.
The Petitioner argued Dr. Wang'ang'a was junior to the 4th and 5th Respondents and had sworn an affidavit supporting their case, incapacitating him by conflict of interest. The Court held the opposite: compelling the directors under investigation to swear affidavits for the juristic person would be a more serious exhibition of conflict of interest. The affidavit expressly deposed to due authorisation and attached a letter signed by the Chairperson and substantive Director, whose validity the Petitioner failed to disprove.
Legal principles established
#- Board resolutions authorising institution of proceedings are required where a juristic person itself commences litigation, but not where it has been sued and the deponent of its affidavit holds authority from the board; where the directors sought to be disciplined cannot swear for the juristic person, the deputy director with authority may.
- A party asserting lack of capacity of a deponent must do more than merely assert it in a rival affidavit where there is a letter of authority whose validity has not been disproved.
Court orders
#- 1.The application dated 20 July 2018 dismissed with costs
- Jurisdiction invoked
- Articles 19, 20, 22(1) & (2)(c), 23, 162(2)(a), 165(5)(b), 258(1) & (2)(c) of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okiya Omtatah Okoiti v Ministry of Health & 5 others;Pharmacy & Poisons Board (Interested Party) [2019] KEELRC 1996 (KLR)", Case Analysis (2019). Petition No. 86 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2019/1996/eng@2019-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.