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ELRCDismissedNot stated in judgment (Petition dated 6th May 2022, filed 9th May 2022)· [2023] KEELRC 3302 (KLR)

Mutisya v Theuri & another (Petition E070 of 2022) [2023] KEELRC 3302 (KLR)

Employment and Labour Relations Court of Kenya
7 December 2023
5,862 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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The Employment Court ruled that a job contract issued by the Law Society of Kenya's unlawful caretaker council was void, so the dismissed employee gets no remedies.

What this practically means

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Executive summary

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The Petitioner, an advocate, petitioned the Employment and Labour Relations Court at Eldoret claiming that the Law Society of Kenya and its President had violated his constitutional rights by refusing to allow him to assume office as Secretary/Chief Executive Officer pursuant to an appointment letter and contract dated 23rd July 2021, with commencement on 1st March 2022. He sought declarations of validity and violation, certiorari to quash his summary dismissal and a fresh advertisement for the position, an order to be allowed to report to work, aggravated and general damages and costs. The Respondents countered that the appointment was procured by an unlawful 'caretaker council' declared a nullity by the High Court in Odundo v Havi, that there was no vacancy at the time of appointment, and that the petition was an abuse of process. The court framed three issues. On joinder, it found the 1st Respondent wrongly sued and struck his name from the proceedings, invoking section 29 of the LSK Act. On validity of the contract, the court held the contract unenforceable on two grounds: it breached section 26(5) of the LSK Act and Regulation 45(2) because the office was not vacant when advertised, and it was founded on a caretaker council declared void ab initio by a judgment in rem delivered before the contract crystallised. The court applied the doctrine that anything founded on a nullity is itself null and void and that courts will not enforce illegal contracts. The petition was dismissed with no order as to costs.

Key legal issues

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01

Whether the 1st Respondent (President of LSK) was properly sued

Holding

The 1st Respondent was wrongly sued and his name was removed from the proceedings; the 2nd Respondent is a corporate body suable in its own name and section 29 of the LSK Act shields members acting bona fide from personal liability.

Reasoning

Except for one prayer seeking a declaration against him as agent of the 2nd Respondent, no relief was directed at the 1st Respondent. The court applied Order 1 of the Civil Procedure Rules and joinder principles, holding he was neither a necessary nor proper party, and relied on section 29 of the LSK Act protecting members and officers acting in good faith from personal liability.

p. 7
02

Whether the Petitioner's contract of employment was valid

Holding

The contract was unenforceable: it was entered into in breach of section 26(5) of the LSK Act and Regulation 45(2) of the LSK Regulations before any vacancy arose, and by a caretaker council declared a nullity.

Reasoning

The court held a vacancy can only be notified and filled when the office actually falls vacant, so the caretaker council filled a non-existent vacancy. Further, the judgment of Mrima J in Odundo v Havi, a judgment in rem delivered before the contract crystallised, declared the caretaker council and all its activities null and void, tainting the contract with nullity. The Petitioner, an advocate, could not feign ignorance of the notorious council wrangles.

p. 11
03

Whether the judgment in Odundo v Havi binds or affects the Petitioner's contract

Holding

The judgment was in rem, binding on all and sundry, and was delivered before the Petitioner's contract came into force; the Petitioner's remedy was to appeal or challenge it, which he did not do.

Reasoning

The Petitioner argued the Mrima J judgment did not touch his contract and was merely persuasive. The court rejected this, holding that a judgment in rem declaring the caretaker council and all its activities void ab initio binds everyone, including the Petitioner, whose contract was to commence on 1st March 2022 after the judgment of 20th December 2021.

p. 11

Legal principles established

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  • A statutory body must act strictly within the powers conferred by its statute and cannot expand them through administrative innovation
  • A contract founded on an illegality or on a nullity is void and unenforceable, and no court will lend its aid to enforce it
  • Every subsequent act premised on a nullity cannot accrue legitimacy or legality
  • A vacancy must exist before it can be advertised and filled; the office of secretary is notified as vacant only when it becomes vacant

Court orders

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  1. 1.Removal of the 1st Respondent's name from the proceedings
  2. 2.Dismissal of the petition
  3. 3.No orders for costs

Authorities

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Legislation

  • Constitution of KenyaArticles 41, 47(1) & (2), 50(1), 45, 2(1), 3, 10(2)(a), 159(2)(c); Chapter 10
  • Law Society of Kenya ActSections 3, 26, 26(5), 29
  • LSK General RegulationsRegulation 45(2)
  • Employment ActSections 44, 45
  • Fair Administrative Actions ActVarious provisions
  • Civil Procedure RulesOrder 1, rules 3, 4, 5, 10, 22
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rule 3(6)(b)

Cases cited (18)

  • Civicon Limited v Kivuwatt Limited and 2 others
    [2015] eKLR
  • Kingori v Chege & 3 others
    [2002] 2 KLR 243
  • Githu Mungai & another v Law Society of Kenya & another
    [2015] eKLR
  • Republic v Kenya Revenue Authority Ex Parte Aberdare Freight Services Ltd & 2 others
    [2004] 2 KLR 530
  • East African Railways Corp. v Anthony Sefu
    Dar-es-Salaam HCCA No 19 of 1971 [1973] EA
  • Beniamin Macfoy v United Africa Co. Ltd
    [1961] 3 All ER 1169
  • Wambui v Mwanqi & 3 others
    [Civil Appeal 465 of 2019] KECA 144 (KLR)
  • Joseph Kamau Kiguoya v Rose Wambui Muthike
    (2016) eKLR
  • Mistry Amar Singh v Kulubya
    1963 E.A 408
  • Scott v Brown, Doering, McNab & Co.
    (1892) 2 QB 724
  • Trans Mara Sugar Co Ltd & another v Ben Kangwaya Ayiemba & another
    [2020] eKLR
  • Safari Inns Ltd & 2 others v Deutsche Investitions-Und Enwicklunqsgesellschaft ('Deg') & others
    Kisii Civil Appeal 72 of 2008 [2011] eKLR
  • Nathala Raghavji Lakhani v H.J. Vaitha & another
    [1965] EA 452
  • Root Capital Incorporated v Tekangu Farmers Co-operative Society Ltd & another
    [2016] eKLR
  • Patel v Singh (No.2)
    (1987) KLR 585
  • Archbolds (Freightage) Ltd v S Spanglett Ltd
    (1961) 1 QB 374
  • R v Nelson Andayi Havi & others ex parte Gad Aguko
    Milimani High Court Judicial Review No E1146 of 2020
  • Odundo & 3 others v Havi & others; Emukule & 22 others (Interested parties)
    Constitutional Petition 22 & E260 of 2021 & E379 of 2020 (Consolidated) (2021)
Jurisdiction invoked
Articles 41, 47(1) & (2) and 50(1) of the Constitution as read with sections 44 and 45 of the Employment Act and the Fair Administrative Actions 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, "Mutisya v Theuri & another (Petition E070 of 2022) [2023] KEELRC 3302 (KLR)", Case Analysis (2023). Not stated in judgment (Petition dated 6th May 2022, filed 9th May 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2023/3302/eng@2023-12-07

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