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ELRCDismissedNot stated in the extract· [2022] KEELRC 559 (KLR)

Akirang’ondu Boys Secondary School & 2 others v Daniel Akaiga [2022] KEELRC 559 (KLR)

Employment and Labour Relations Court (appellate jurisdiction from lower court)
9 March 2022
DMD.K.Njagi Marete
614 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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Kenya's Employment Court confirmed the Attorney General can represent public institutions in litigation, dismissing an attempt to lock the state lawyer out of the case.

What this practically means

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Executive summary

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The court (D.K.Njagi Marete J, sitting at Nyeri, in an appeal from a lower court) delivered a ruling on a preliminary objection dated 22nd February 2021 raised by the Respondent/Objector. The objection sought, among eleven grounds, to bar the Attorney General from acting for the Appellants on the basis that the 1st and 2nd Appellants are bodies corporate with capacity to sue and be sued under Sections 6, 10 and 11 of the Education Act, that their appointment of the Attorney General was ultra vires, contrary to the State Corporations Act and the Mwongozo Code, and that the objection was an abuse of process lacking substratum. The Appellants opposed, arguing the objection was not a pure point of law and that the Attorney General is their public defender under Article 156(6) of the Constitution, read with Sections 35 and 56 of the Basic Education Act, 2013 and Section 12 of the Government Proceedings Act. The court held that it is trite law that the Attorney General comes out in defence of public interest, that the Appellants are public institutions or agents thereof, and that the Respondent's position was unsustainable. The preliminary objection was dismissed with each party bearing their own costs, and the court directed that the application dated 9th February 2021 proceed to full determination.

Key legal issues

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01

Locus standi of the Attorney General to act for the Appellants

Holding

The Attorney General has locus standi to defend the Appellants as public institutions/agents defending public interest

Reasoning

The court accepted the Appellants are public institutions or agents of the 1st Applicant, a public institution. Although the Respondent argued the 1st and 2nd Appellants are bodies corporate under Sections 6, 10 and 11 of the Education Act with capacity to sue and be sued, the court held the role of the Attorney General in defending public interest prevails, invoking Article 156(6) of the Constitution, Sections 35 and 56 of the Basic Education Act and Section 12 of the Government Proceedings Act.

p. 2
02

Whether the preliminary objection was a proper preliminary objection on a point of law

Holding

The objection failed as unsustainable

Reasoning

The Appellants faulted the objection for not being a pure point of law; the court found the Respondent's position unsustainable given the settled role of the Attorney General in defending public interest litigation.

p. 2

Legal principles established

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  • The Attorney General is entitled to defend public institutions and public interest in litigation

Court orders

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  1. 1.The preliminary objection dated 22nd February 2021 is dismissed
  2. 2.Each party to bear their own costs of the preliminary objection
  3. 3.The court to proceed to determine the application dated 9th February 2021

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 156(6)
  • Education ActSections 10, 11, 6
  • Basic Education Act, 2013Sections 35, 56; Fourth Schedule Part 1 Section 1
  • State Corporations Actnot specified
  • Government Proceedings ActSection 12
  • Mwongozo Code of Governancenot specified
On appeal from
lower court
not stated
Jurisdiction invoked
Appellate jurisdiction over the lower court; preliminary objection on locus standi of the Attorney General (Article 156(6) of the Constitution cited)

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, "Akirang’ondu Boys Secondary School & 2 others v Daniel Akaiga [2022] KEELRC 559 (KLR)", Case Analysis (2022). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/559/eng@2022-03-09

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