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ELRCPartially AllowedNot stated in the judgment· [2021] KEELRC 1327 (KLR)

Ashford Kimathi v Registered Trustees of Nanyuki Sports Club [2021] KEELRC 1327 (KLR)

Employment and Labour Relations Court
30 June 2021
DMD.K.Njagi Marete
1,600 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan employment court allowed a sacked manager to add his employer's trustees as defendants, ruling that all interested parties must be present for a complete decision.

What this practically means

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Executive summary

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The Claimant/Applicant, who sued the Nanyuki Sports Club for unfair, unlawful and illegal termination of his employment as General Manager/Club Secretary, moved the court by application dated 8th March 2021 seeking leave to enjoin the five named trustees of the club - Mr. Michael Littlewood, Maj. Gen Peter N. Waweru, Dr. Benson Muthiora, Mrs. Harriet Mwirigi and Mr. Sajid Bhat - and to have his draft amended Statement of Claim deemed duly filed. He argued that the club's property is vested in the trustees under Rule 4(a) of the Club's Rules, that the trustees hold the power to issue and terminate employment contracts, and that their presence is necessary to enable the court to effectually and completely adjudicate upon and settle all questions in the suit, including ensuring any orders issued are enforceable and not a mere academic exercise. He relied on Order 8 rule 5(1) of the Civil Procedure Rules, 2010 and authorities on the liberal allowance of amendments, plus the Court of Appeal decision in Nderitu Wachira v Siraji Enterprises Ltd on Order 1 rule 10(2). The Respondent opposed the application through a Replying Affidavit sworn on 13th March 2021, contending that no certificate of incorporation was exhibited to prove the trustees' legal existence, that the decisions of the club are made by its committee not the trustees, and that the application was misconceived and an abuse of process. The court held that the applicant's case of joinder overwhelmed the respondent's opposition, that all issues in dispute should be canvassed in the presence of all interested parties, that the respondent's denial was merely evasive, and that the joinder caused no prejudice. The application was allowed, with each party bearing their own costs of the application.

Key legal issues

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01

Whether the trustees of Nanyuki Sports Club should be enjoined as parties to the employment termination suit

Holding

Yes. The application for joinder was allowed because the presence of the trustees is necessary for the effective and complete adjudication of the disputes, and no prejudice was demonstrated.

Reasoning

The court found that the club's property is vested in the trustees under the Club's Rules and that the trustees hold power to issue and terminate employment contracts. Joining them ensures the court's orders are enforceable rather than academic. The respondent's opposition, resting on alleged non-registration, was treated as evasive and no prejudice was shown. Joinder therefore promotes complete adjudication of all issues.

p. 1
02

Whether the respondent's objection based on lack of proof of registration of the trustees defeats the joinder

Holding

No. The court regarded the respondent's denial and grounds of opposition as merely evasive, holding the trustees should take responsibility and avail themselves for scrutiny.

Reasoning

The respondent argued there was no certificate of incorporation proving the trustees' legal existence, and that the claim was against a non-existent entity. The court did not adopt this objection, instead viewing the denial as evasive and holding it incumbent on the trustees to avail themselves for scrutiny of their actions in running the facility.

p. 3

Legal principles established

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  • Non-joinder of necessary parties does not by itself render a suit fatally defective, and joinder is in the interest of complete adjudication
  • An application for joinder that does not prejudice the opposite party should be allowed

Court orders

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  1. 1.The application dated 8th March, 2021 is allowed
  2. 2.Leave granted to enjoin the trustees of Nanyuki Sports Club as parties to the suit
  3. 3.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 8 rule 5(1)
  • Civil Procedure Rules, 2010Order 1 rule 10(2)
  • Trustees (Perpetual Succession) Act, Cap 164, Laws of KenyaNot specified
  • Nanyuki Sports Club Rules/ConstitutionRule 4(a); clause 49(a)

Cases cited (3)

  • Freight Forwarders Kenya Limited vs. Aya Investments Uganda Limited
    (2014) eKLR
  • East Bakery vs Castelino
    (1958) E.E. 461
  • Nderitu Wachira Receiver & Manager of Bulleys Tanneries Ltd. (under Receivership) & 4 others v Siraji Enterprises Ltd & another
    (2016) eKLR
Jurisdiction invoked
Original employment and labour relations jurisdiction; application brought under Order 8 rule 5(1) and Order 1 rule 10(2) of the Civil Procedure Rules, 2010

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, "Ashford Kimathi v Registered Trustees of Nanyuki Sports Club [2021] KEELRC 1327 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2021/1327/eng@2021-06-30

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