Commission for Human Rights and Justices (CHRJ) v Kung’u Ndung’u & 6 others; Commissioner for University Education (Interested Party) [2021] KEELRC 1048 (KLR)
The bottom line
#Kenya's Employment Court ruled that missing documents and unclear group status won't kill a constitutional petition, though you must sue the right organisation.
What this practically means
#Executive summary
#Key legal issues
#Whether the POs raise pure points of law
The POs raise pure points of law save for the ground that the petition is frivolous, vexatious and an abuse of process, which requires evidence and was overruled.
Applying the Mukisa Biscuits test, the court examined each ground. Grounds going to statutory non-compliance, competence and locus standi rest on the pleadings and are points of law. The abuse-of-process ground depends on facts to be ascertained and so fails as a preliminary objection.
Whether the petition is fatally defective for failure to annex documents to the petition
The lapse is procedural, not fatal, and curable by leave before hearing.
Rule 11(2) of the Mutunga Rules requires documents to be annexed to the supporting affidavit or petition. The documents were instead produced with the Notice of Motion. The court held the default curable, ordering compliance rather than striking out, to protect access to justice and allow the respondents to prepare their defence.
Whether the Petitioner has locus standi
The Petitioner has locus standi under Articles 22, 258 and 260 regardless of its incorporation status.
Article 260 defines a person to include unincorporated bodies, and Article 22(2)(c) permits suits in the public interest. Relying on Mumo Matemu, the court held that traditional strictures of locus standi are relaxed in constitutional adjudication, though a petitioner claiming to be registered should disclose how and where it is registered.
Whether the Petition offends sections 3 and 67(a) of the Kenya Roads Act
Suing the Chairman instead of the Authority is a misjoinder cured by striking out the 2nd Respondent; the section 67(a) objection was not considered since the Authority was not sued.
Section 3(a) makes KeNHA the body corporate capable of being sued, and section 48 protects officers from personal liability. The omission of the letter 's' in KeNHA's name was a trivial typographical slip. Under Rule 5 of the Mutunga Rules the remedy for misjoinder is striking out the party's name, not the petition. The statutory notice objection was inapplicable once the Authority itself was not a party.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot be raised where facts have to be ascertained
- An unincorporated entity acting in the public interest has locus standi under Articles 22, 258 and 260 of the Constitution
- A procedural lapse in annexing documents to a petition is curable and should not defeat access to justice
Court orders
#- 1.Overruled the ground in the POs that the petition is a mere shell, frivolous, vexatious and an abuse of process
- 2.Overruled the ground that the petition is fatally defective and incompetent for failure to annex documents to the petition
- 3.Held that the Petitioner has locus standi under Article 260 of the Constitution
- 4.Struck out the 2nd Respondent from the petition for misjoinder and lack of legal capacity
- 5.Dismissed the 1st Respondent's PO in its entirety
- 6.No order as to costs
- Jurisdiction invoked
- Articles 22, 23 and 258 of the Constitution; proceedings under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013 (Mutunga Rules)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Commission for Human Rights and Justices (CHRJ) v Kung’u Ndung’u & 6 others; Commissioner for University Education (Interested Party) [2021] KEELRC 1048 (KLR)", Case Analysis (2021). Petition No E054 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1048/eng@2021-09-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.