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ELRCStruck OutNot stated in judgment· [2023] KEELRC 1399 (KLR)

Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v Eastleigh High School (Cause 354 of 2015) [2023] KEELRC 1399 (KLR)

Employment and Labour Relations Court
8 June 2023
MNMATHEWS N. NDUMA
899 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court threw out an employment claim against a school because the school itself cannot be sued — only its Board of Management can.

What this practically means

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Executive summary

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The claimant union filed a memorandum of claim on March 11, 2015 against Eastleigh High School, described as an education institution registered under the repealed Education Act, cap 211, on behalf of grievants who worked as security officers. The respondent moved to strike out the suit on the ground that it was filed against a non-existent entity. The parties argued the question on the basis of written submissions without oral evidence. The court, per Mathews N. Nduma J, held that under the Basic Education Act, 2013 a public secondary school operates through its Board of Management, established under section 55, whose functions include recruiting and remunerating non-teaching staff under section 59. Regulation 1 of the Fourth Schedule makes the Board a body corporate capable of suing and being sued. Consequently, a school may only be sued through its Board of Management; naming the school alone does not found a suit because the school has no legal capacity to sue or be sued. The court followed Evans Otiende Omollo v School Committee Union Primary School and another [2015] eKLR, holding that allowing a suit against non-existent defendants to proceed is an abuse of process. The court noted Order 1 Rule 9 of the Civil Procedure Rules on misjoinder but found the respondent here simply does not exist, and the claimant had taken no steps since August 2016 to amend or withdraw the claim. The suit was struck out in its entirety, subject to the law of Limitation of Actions. No costs order appears in the judgment.

Key legal issues

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01

Legal capacity of a school as a sued entity

Holding

A school has no legal capacity to sue or be sued in its own name; the proper defendant is its Board of Management, a body corporate under the Basic Education Act, 2013

Reasoning

Under section 55 of the Basic Education Act every public secondary school has a Board of Management, which under Regulation 1 of the Fourth Schedule is a body corporate with perpetual succession capable of suing and being sued. The Board is the legal employer of non-teaching staff under section 59. The claimant, experienced in the education sector, sued the school by name only and failed to amend despite the issue being raised in 2016.

p. 2
02

Effect of misjoinder or suit against non-existent party

Holding

Although Order 1 Rule 9 of the Civil Procedure Rules provides that a suit shall not be defeated by misjoinder or non-joinder, a suit against an entity that does not exist in law cannot stand and constitutes an abuse of process

Reasoning

The court acknowledged the general protection of Order 1 Rule 9 but distinguished it: the respondent here does not merely lack proper joinder, it does not exist at all as a legal person. The claimant took no steps to withdraw or amend the memorandum of claim over many years, so the suit was struck out entirely, subject to limitation of actions rules.

p. 3

Legal principles established

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  • A school such as Eastleigh High School may only be sued through its Board of Management; the school name alone has no legal capacity to sue or be sued
  • Maintaining a suit against a non-existent entity, without amendment, amounts to an abuse of the court's process

Court orders

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  1. 1.The suit is struck out in its entirety
  2. 2.The striking out is subject to the law of Limitation of Actions

Authorities

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Legislation

  • Education Act (cap 211)repealed
  • Basic Education Act No. 14 of 2013section 55
  • Basic Education Act No. 14 of 2013section 59(1)(p)
  • Basic Education Act No. 14 of 2013section 62(1)
  • Basic Education Act No. 14 of 2013section 76
  • Basic Education Act No. 14 of 2013section 79(1)-(2)
  • Basic Education Act No. 14 of 2013Fourth Schedule, Regulation 1
  • Civil Procedure RulesOrder 1 Rule 9
  • Limitation of Actions Actnot specified

Cases cited (1)

  • Evans Otiende Omollo v School Committee Union Primary School and another
    [2015] eKLR
Jurisdiction invoked
Not stated in judgment; first-instance employment and labour relations jurisdiction

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, "Kenya Union of Domestic, Hotels, Educational Institutions and Hospital Workers v Eastleigh High School (Cause 354 of 2015) [2023] KEELRC 1399 (KLR)", Case Analysis (2023). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1399/eng@2023-06-08

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