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ELRCStruck OutCause No E046 of 2022· [2023] KEELRC 2443 (KLR)

Okware v Nyanza Initiative for Girls Education & Empowerment (Cause E046 of 2022) [2023] KEELRC 2443 (KLR)

Employment and Labour Relations Court
12 October 2023
3,711 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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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

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Executive summary

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The Claimant, formerly employed on fixed-term contracts from 2013 as Project Accountant and later also as Compliance Officer, sued Nyanza Initiative for Girls Education & Empowerment claiming declarations that he had become a permanent employee and that his termination on 7th July 2022 was unfair and unlawful, together with notice pay, twelve months' compensation, and various alleged salary arrears for 2019-2022, and a certificate of service. The Respondent denied the claim, asserted it was registered under the Societies Act rather than as an NGO, contended the two positions were mutually exclusive, justified the reduced salaries by reference to meetings at which the Claimant accepted salary reductions owing to loss of donor funding, and maintained the termination on one month's notice was lawful. At the close of pleadings and testimony, the Respondent submitted the suit was fatally defective for want of capacity. The court framed three issues: competence of the claim, unfair termination, and remedies. Holding that capacity to be sued goes to locus standi and is not a mere technicality, and that a society registered under the Societies Act lacks capacity to sue or be sued in its own name, the court found the Respondent lacked capacity to be sued. The Memorandum of Claim filed on 8th November 2022 was struck out with costs, the remaining issues falling away. No merits findings were made on the termination or the salary claims.

Key legal issues

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01

Whether a suit against an entity registered under the Societies Act, Cap. 108, in its own name is competent

Holding

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.

Reasoning

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.

p. 8
02

Whether the Claimant was unfairly terminated and entitled to remedies

Holding

Not determined; the issue fell away following the striking out of the claim.

Reasoning

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.

p. 8

Legal principles established

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  • 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

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  1. 1.The Memorandum of Claim filed on 8th November, 2022 is struck out with costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 41, 50(2)(a), (j), (k)
  • Employment Act, 2007Sections 2, 35(1)(c), 41, 43
  • Societies ActCap. 108
  • NGO ActNot specified
  • PBO ActNot specified

Cases cited (8)

  • South African Clothing and Textile Worker's Union and Another v CADEMA Industries (Pty) Ltd (C 277/05) [2008] ZALC 5
    C 277/05 [2008] ZALC 5
  • Sandra M. Waswa v Article 19: Global Campaign for Free Expression [2022] eKLR
    [2022] eKLR
  • Issa Shekue Shali vs Buscar Limited (2018) eKLR
    (2018) eKLR
  • Islamia Madrassa Society v Zafar Niaz & 8 others [2021] eKLR
    [2021] eKLR
  • Trustees Kenya Redeemed Church & Anor vs Samuel M'Obiya & 5 others [2011] eKLR
    [2011] eKLR
  • Republic v Registrar of Societies Ex-parte Narok Muslim Welfare Association [2017] eKLR
    [2017] eKLR
  • Peter Taracha & Anor -Vs Holiness Church & Anor [2016] eKLR
    HCA No. 128 of 2013, [2016] eKLR
  • John Ottenyo Amwayi & Others v. Rev. George Abura & Others
    HCCC No. 6339 of 1990
Jurisdiction invoked
Employment and Labour Relations Court jurisdiction over employment and labour relations claims (Employment Act, 2007; Labour Relations Act)

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, "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.