Mutisya v Theuri & another (Petition E070 of 2022) [2023] KEELRC 3302 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 1st Respondent (President of LSK) was properly sued
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.
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.
Whether the Petitioner's contract of employment was valid
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.
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.
Whether the judgment in Odundo v Havi binds or affects the Petitioner's contract
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.
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.
Legal principles established
#- 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
#- 1.Removal of the 1st Respondent's name from the proceedings
- 2.Dismissal of the petition
- 3.No orders for costs
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.