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ELRCDismissedAppeal against ruling in Kisumu CMELRC Cause No. E016 of 2020 (Memorandum of Appeal dated 2nd June 2021, filed 25th June 2021)· [2022] KEELRC 418 (KLR)

Chairman B.O.M Bishop Abiero Shauri Moyo Sec. School v Meshack Wesonga Osiyo [2022] KEELRC 418 (KLR)

Employment and Labour Relations Court
24 March 2022
CBChristine N. Baari
2,002 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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What this practically means

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Executive summary

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The Respondent, Meshack Wesonga Osiyo, lodged Kisumu CMELRC Cause No. E016 of 2020 claiming one month's salary in lieu of notice, damages for loss of employment and pay in lieu of leave, naming the Chairman of the Board of Management of Bishop Abiero Shauri Moyo Secondary School. The Appellant filed a preliminary objection contending that the suit was fatally defective for misjoinder, that under Sections 55, 56 and 59 of the Basic Education Act, 2013 and Regulations 17 to 21 of the Basic Education Regulations, 2015 the proper party was the Board of Management, and that Board members enjoy protection from personal liability under the Fourth Schedule. The Trial Court dismissed the objection on 21st April 2021, prompting this appeal filed on 25th June 2021 canvassed by written submissions. The court framed a single issue: whether the Trial Court's ruling and orders should be set aside and the preliminary objection upheld. Relying on Order 1 Rule 9 of the Civil Procedure Rules and the Court of Appeal's decision in William Kiprono Towett v Farmland Aviation Ltd, the court held that a suit cannot be defeated by misjoinder or non-joinder of parties. It accepted that the Appellant had been improperly sued but held the defect curable by substitution under Order 1 Rule 10. The appeal was dismissed with costs to the Respondent, the Trial Court's order upheld, and the Chairman ordered struck out and substituted with the Board of Management within 14 days, with the matter to be mentioned for pre-trial directions upon filing of the amended claim.

Key legal issues

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01

Whether misjoinder of a party renders a suit fatally defective and warranting striking out

Holding

It does not; a suit cannot be defeated by misjoinder or non-joinder, and the proper remedy is substitution of the improperly joined party

Reasoning

The court invoked Order 1 Rule 9 of the Civil Procedure Rules, which expressly provides that no suit shall be defeated by misjoinder or non-joinder of parties. The Court of Appeal in William Kiprono Towett v Farmland Aviation was cited to the same effect. The court held the appeal without merit, affirmed the Trial Court's dismissal of the preliminary objection, and ordered substitution of the Chairman with the Board of Management under Order 1 Rule 10, allowing the claim to proceed against the proper party.

p. 3
02

Whether the Chairman of a school's Board of Management has capacity to be sued in his own name

Holding

The Chairman, being improperly sued, is to be struck out and substituted with the Board of Management, which is the proper party

Reasoning

The Appellant conceded and the court accepted that she had been improperly sued, the Respondent having admitted as much and sought amendment. Relying on Order 1 Rules 10(1), (2) and (4), the court exercised its discretion to strike out the improperly joined Chairman and substitute the Board of Management within 14 days, with the plaint to be amended accordingly, preserving the suit rather than terminating it.

p. 3

Legal principles established

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  • No suit shall be defeated by reason of the misjoinder or non-joinder of parties; the court may deal with the matter in controversy so far as regards the parties actually before it
  • A court may at any stage strike out the name of a party improperly joined and add or substitute the proper party

Court orders

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  1. 1.The Appellant's appeal filed on 25th June 2021 dismissed with costs to the Respondent
  2. 2.The order issued in Kisumu CMELRC Cause No. E016 of 2020 - Meshack Wesonga Osiyo v The Chairman B.O.M is upheld
  3. 3.The Chairman, Board of Management, Bishop Abiero Secondary School struck out and substituted with the Board of Management of Bishop Abiero Secondary School within 14 days of delivery of the judgment
  4. 4.The matter to be mentioned before the Trial Court for pre-trial directions upon filing of the amended claim

Authorities

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Legislation

  • Basic Education ActSections 55, 56, 59 (including 59(P)); Fourth Schedule paragraphs 1, 14 and 15
  • Basic Education RegulationsRegulations 17 to 21
  • Civil Procedure RulesOrder 1 Rules 9 and 10(1), (2) and (4); Order 10 Rules 2 and 4
  • Constitution of KenyaArticles 50(1) and 159(2)(d)

Cases cited (6)

  • Beatrice Tilitei & Another v William Kibet Chiboi
    (2017) eKLR
  • Republic v The Secretary to the Board of Governors, Musingu High School-Kakamega
  • Zephic Holdings Limited v Mimosa Plantations Limited, Jeremiah Matagaro & Ezekiel Misango Mutisya
    (2014) eKLR
  • J.N and 5 Others v Board of Management, St. G School Nairobi & Another
    (2017) eKLR
  • Republic v District Land Registrar, Uasin Gishu & Another
    (2014) eKLR
  • William Kiprono Towett & 1597 Others v Farmland Aviation Ltd & 2 Others
    (2016) eKLR
On appeal from
Chief Magistrate's Court at Kisumu (CMELRC)
Cause No. E016 of 2020
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Employment and Labour Relations Court cause ( appeal against ruling dismissing a preliminary objection )

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, "Chairman B.O.M Bishop Abiero Shauri Moyo Sec. School v Meshack Wesonga Osiyo [2022] KEELRC 418 (KLR)", Case Analysis (2022). Appeal against ruling in Kisumu CMELRC Cause No. E016 of 2020 (Memorandum of Appeal dated 2nd June 2021, filed 25th June 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/418/eng@2022-03-24

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