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ELRCPartially AllowedCause No 732 of 2019· [2023] KEELRC 250 (KLR)

Nyaata v Evangelical Lutheran Church in Kenya (ELCK) being sued through its Officials namely Joseph Ochola, Muchiri Kariuki & Benjamin Lemiso (Cause 732 of 2019) [2023] KEELRC 250 (KLR)

Employment and Labour Relations Court
2 February 2023
5,707 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed that churches and societies can be sued through any recognized officials, not just registered trustees.

What this practically means

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Executive summary

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The Claimant sued the Respondent church, an unincorporated society registered under the Societies Act, for unfair and constructive termination, alleging she was pushed into resigning by unfair labour practices, and sought a declaration and compensation. At the close of pleadings, the Respondent applied to strike out the claim dated 26th October 2022, alternatively to strike out its own name or the names of the three individuals sued as its officials, arguing there was no proper defendant since an unincorporated body can only be sued through its registered trustees, and that the named individuals were not its officials. The court held that while suits by or against unincorporated bodies must be filed through recognized officials, the law does not require those officials to be registered trustees, relying on Court of Appeal authority and section 2 of the Societies Act. It further held that the Respondent could not dispute through the application facts it had admitted in its defence, and that the trustees-only ground raised for the first time in submissions could not support the drastic relief sought. The church's constitutional provision was distinguished because the trustees' power is subject to General Assembly approval. The court distinguished Skair Associates Architects, since the church was not sued as a standalone defendant. It declined to strike out the Statement of Claim or the names of the church, Benjamin Lemosi and Joseph Ochola, but struck out the name of Muchiri Kariuki, both parties effectively conceding he was not an official. The Claimant was left at liberty to seek substitution of Lemosi, who had since left office. Costs of the application were ordered to be in the cause.

Key legal issues

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01

Whether the claim against the church was properly commenced through officials who are not trustees

Holding

The suit was properly commenced through two undisputed officials; it is not settled law that officials must be registered trustees

Reasoning

The court reviewed Court of Appeal and High Court authority and found that while suits by or against unincorporated bodies must be through recognized officials, the authorities do not agree those officials must be registered trustees. Section 2 of the Societies Act defines an officer broadly, and the church was sued through named officials, which is sanctioned practice.

p. 3
02

Whether the trustees-only ground, raised first in submissions, could ground striking out

Holding

No; a point of law founding a formal interlocutory application must be expressly set out in the application

Reasoning

The court noted the ground was absent from the defence, the application and the supporting affidavits, appearing only in counsel's submissions. It held such a ground doubtful as a basis for drastic orders, since where a point of law is the foundation of an application it is expected to be expressly pleaded in it.

p. 3
03

Whether the church's constitutional provision vesting power to litigate in trustees compels suit only against trustees

Holding

No; the trustees' power is subject to General Assembly approval, and the church can still sue or be sued through other officials under section 2 of the Societies Act

Reasoning

Article XVIII of the church's Constitution makes the trustees' power to litigate subject to prior General Assembly approval. The court reasoned that in the absence of such approval the church cannot be left helpless, and may sue or defend through other officials contemplated by the Societies Act.

p. 8
04

Whether the three individuals face personal liability

Holding

No; they are sued only as officials, a vehicle through which the action is maintained against the unincorporated body

Reasoning

The court held the officials shoulder no personal responsibility and face no case in their individual capacities; they are expected to advance the church's defence, not a personal one. Ultimate responsibility for any adverse monetary order lies with the Respondent through its General Assembly.

p. 7
05

Whether substitution would breach section 90 of the Employment Act

Holding

No; suit was filed within time against officials on behalf of the Respondent, so substitution does not introduce new Respondents out of time

Reasoning

The cause of action arose on 25th November 2018 and suit was filed on 31st October 2019, within three years. New individuals substituted for departing officials are sued on behalf of the Respondent already sued within time, so limitation is not offended.

p. 10
06

Whether Muchiri Kariuki was properly sued

Holding

His name should be struck out as both parties effectively conceded he was not an official at the time of filing suit

Reasoning

The Respondent consistently denied Muchiri Kariuki was an official, and the Claimant indirectly conceded by relying on an old search, describing his inclusion as mis-joinder arising from an honest mistaken belief. The court therefore struck out his name.

p. 9

Legal principles established

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  • Suits by or against unincorporated bodies must be filed through their recognized officials, but those officials need not be registered trustees
  • Suits against unincorporated bodies are not rendered defective merely because they have been filed by or against non-trustees
  • A party cannot, through an interlocutory application, dispute a fact it has admitted in its pleadings
  • A point of law that is the foundation of a formal interlocutory application ought to be expressly set out in the application, not raised for the first time in submissions
  • A suit ought not to be summarily dismissed unless it is hopeless and incurable by amendment
  • Substitution of officials of an unincorporated body sued on its behalf does not bring new parties on board outside the limitation period

Court orders

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  1. 1.Declined to strike out the Statement of Claim or the name of the church, the action having been properly commenced through its two undisputed officials at the time (Benjamin Lemosi and Joseph Ochola)
  2. 2.Struck out the name of Muchiri Kariuki from the proceedings
  3. 3.Declined to strike out the names of Benjamin Lemosi and Joseph Ochola from the proceedings
  4. 4.Left it to the Claimant to move the court, if she elects, for substitution of Benjamin Lemosi who has ceased being an official of the Respondent
  5. 5.Costs of the application shall be in the cause

Authorities

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Legislation

  • Societies ActSection 2 (definition of 'officer'); Section 3
  • Evidence ActSection 112
  • Employment ActSection 90
  • Constitution of Kenya, 2010Article 260
  • ELRC Procedure RulesRule 28(3)
  • Constitution of the Evangelical Lutheran Church in KenyaArticle XVIII

Cases cited (15)

  • Kituo Cha Sheria v John Ndirangu Kariuki & another
    [2013] eKLR
  • Pius Watene D Maina v Director General Kenya Urban Roads Authority & 5 others
    [2020] eKLR
  • African Orthodox Church of Kenya v Charles Omuroka & another
    [2014] eKLR
  • Living Water Church International v City Council of Nairobi
    [2008] eKLR
  • Trustees Kenya Redeemed Church & Anor v Samuel M'Obiya & 5 others
    [2011] eKLR
  • J. D. Construction Limited v Evangelist Teresia Wairimu Kinyanjui
    [2019] eKLR
  • Bakari Kea v Evangelical Lutheran Church in Kenya (ELCK) through Walter Obare Omwanza & 2 others
    [2017] eKLR
  • Anderson Mole Munyaya & 3 others v Morris Sulubu Hare
    [2017]
  • Grace Mwenda Muthuri v The Trustees of Agricultural Society of Kenya
    Civil Appeal No. 250 of 2015 (unreported)
  • Finmax Community Based Group & 3 others v Kericho Technical Institute
    [2021] eKLR
  • Ephuntus Kihara Guchu v Grace Gathoni Matu & 4 others (Officials of Multipurpose Women Group)
    [2020] eKLR
  • Skair Associates Architects v Evangelical Lutheran Church of Kenya & 4 others
    [2015] eKLR
  • Muchunga Investment Ltd v Safaris Unlimited (Africa) & 2 others
    (2009) eKLR
  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR
  • Bishop Bakari Kea v Evangelical Lutheran Church in Kenya (Elck) Through Arch-Bishop Walter Obare Omwanza & 2 others
    [2016] eKLR
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (unfair termination claim under the Employment Act; ELRC Procedure Rules)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nyaata v Evangelical Lutheran Church in Kenya (ELCK) being sued through its Officials namely Joseph Ochola, Muchiri Kariuki & Benjamin Lemiso (Cause 732 of 2019) [2023] KEELRC 250 (KLR)", Case Analysis (2023). Cause No 732 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/250/eng@2023-02-02

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