Okware v Nyanza Initiative for Girls Education & Empowerment (Cause E046 of 2022) [2023] KEELRC 2443 (KLR)
The bottom line
#An employee lost his unfair termination case because he sued a Kenyan society in its own name, which legally cannot be sued.
What this practically means
#Executive summary
#Key legal issues
#Whether a suit against an entity registered under the Societies Act, Cap. 108, in its own name is competent
The claim was incompetent and a nullity because the Respondent, being registered under the Societies Act, lacked capacity to be sued; the Claimant had not sued the Respondent's officials nor sought to amend the claim to do so.
The court adopted the settled position that societies registered under the Societies Act are unincorporated and cannot sue or be sued in their own names, relying on Islamia Madrassa Society v Zafar Niaz, Trustees Kenya Redeemed Church v Samuel M'Obiya, Peter Taracha v Holiness Church, and John Ottenyo Amwayi v Rev. George Abura. The Claimant admitted the Respondent was a society and did not amend his claim to sue the officials, so the capacity defect went to the root of the suit.
Whether the Claimant was unfairly terminated and entitled to remedies
Not determined; the issue fell away following the striking out of the claim.
Having found the claim incompetent for want of capacity on the part of the Respondent, the court held that the remaining issues on unfair termination and remedies did not require determination. No findings were made on the merits of the termination, the nature of the Claimant's contracts, or the alleged salary arrears.
Legal principles established
#- A society registered under the Societies Act is not a legal person with capacity to sue or be sued in its own name; it can only sue or be sued through its duly appointed officers.
- Capacity to sue or be sued raises the question of locus standi, which is a substantive issue of law and not a mere technicality curable under Article 159 of the Constitution.
Court orders
#- 1.The Memorandum of Claim filed on 8th November, 2022 is struck out with costs
- Jurisdiction invoked
- Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007; Labour Relations Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okware v Nyanza Initiative for Girls Education & Empowerment (Cause E046 of 2022) [2023] KEELRC 2443 (KLR)", Case Analysis (2023). Cause No E046 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/2443/eng@2023-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.