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ELRCStruck OutNot stated in the judgment provided· [2023] KEELRC 1697 (KLR)

Kimathi v Littlewood & 4 others (Registered Trustees of Nanyuki Sports Club) & another (Cause E010 of 2020) [2023] KEELRC 1697 (KLR)

Employment and Labour Relations Court
14 July 2023
OMOnesmus N Makau
3,875 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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An employee's unfair termination claim worth millions was struck out because he sued the wrong parties, but he can file a fresh case within three years.

What this practically means

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Executive summary

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The claimant, formerly General Manager/Club Secretary of Nanyuki Sports Club, sued the registered trustees and the club, alleging that his three-year renewable contract was unfairly terminated on 2nd September 2020 for alleged misconduct. He sought a declaration of unfair and illegal termination, unpaid salaries of Kshs.360,000 for July to September 2020, salary for the unexpired contract term of Kshs.3,450,000, leave allowance of Kshs.300,000, and general damages with interest. The respondents denied unfair termination, asserting a show cause letter and disciplinary hearing preceded the dismissal, and contended that they lacked capacity to be sued: the 2nd respondent was only an exempted society, and no certificate of registration of trustees was produced for the 1st respondent. The court framed four issues, including whether the suit was a non-starter for want of competent respondents. Relying on authority that a non-existent party cannot sue or be sued and that a society must be sued through its named officials, the court found the claimant had failed to prove the respondents' legal capacity and that the properly elected officials had not been joined. Without reaching the merits of the termination, the court struck out the suit as fatally incompetent but allowed the claimant liberty to file a proper suit before the three-year limitation period lapsed, with no order as to costs.

Key legal issues

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01

Whether the respondents have capacity to be sued

Holding

The suit against both respondents is a non-starter and fatally incompetent

Reasoning

The claimant bore the burden of proving that the 1st respondent was a registered trust under the Trustees (Perpetual) Succession Act and that the 2nd respondent was a body corporate. No certificate of registration of trustees was produced, and the 2nd respondent was only an exempted society, which must be sued through its elected officials by name, not titles. The elected officials (Chairman Kuldip Hunjan and the Committee) were not joined.

p. 6
02

Whether the reasons for termination were valid and fair, and whether fair procedure was followed

Holding

Not determined, as the suit was struck out before reaching the merits

Reasoning

The court held that once the respondents were found to lack legal capacity, it was unnecessary to consider validity of the termination reasons, procedural fairness, or the reliefs sought, since any decree would issue against nobody.

p. 7

Legal principles established

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  • A non-existent party cannot be sued; a suit against a mere name with no legal existence is fatally incompetent
  • A society which is not a legal person must be sued through its named officials, not its titles
  • Where respondents are not competent legal persons, the court need not examine the merits and cannot award costs

Court orders

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  1. 1.Suit struck out against both respondents as a non-starter and fatally incompetent
  2. 2.Claimant at liberty to file a proper suit before the limitation period of three (3) years lapses
  3. 3.No order as to costs

Authorities

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Legislation

  • Employment ActSection 10(5)
  • Employment ActSection 41
  • Evidence ActSection 35(4)
  • Societies Act Cap 108 (also referred to as Cap 208)Sections 9 and 10
  • Trustees (Perpetual) Succession ActSections 9 and 10
  • Employment and Labour Relations Court (Procedure) RulesRule 28(3)

Cases cited (11)

  • Bakery Confectionary Food Manufacturing and Allied Workers Union (K) v Kenafric Industries Ltd
    [2021] eKLR
  • Cargill Kenya Ltd v Wilson Onywoki Nyakeruma
    [2021] eKLR
  • Standard Group Ltd v Jenny Luesby
    [2018] eKLR
  • Gilbert Mariera Makori v Equity Bank Ltd
    [2016] eKLR
  • Evans Kamandi Misango v Barclays Bank of Kenya Ltd
    [2015] eKLR
  • Kenya Power & Lighting Company v Benzenga Holdings Ltd T/a Wyco Paints
    [2016] eKLR
  • Geofirey Ndirangu & 5 others v Chairman of Mariakani Jua Kali Association & 2 others
    [2015] eKLR / [2005] eKLR
  • Kennedy Maina Mirera v Barclays Bank of Kenya Ltd
    [2018] eKLR
  • Elizabeth Wakiunyi Kibe v Telkom Kenya Ltd
    [2014] eKLR
  • Banque Internationale De Commerce
  • Fort Hall Bakery Supply Co. v Fredrick Muigai Wangoe
    [1959] EA 474
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment disputes (claim for unfair termination under the Employment Act); specific enabling provision not 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, "Kimathi v Littlewood & 4 others (Registered Trustees of Nanyuki Sports Club) & another (Cause E010 of 2020) [2023] KEELRC 1697 (KLR)", Case Analysis (2023). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/1697/eng@2023-07-14

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