Njoroge v Local Authorities Provident Fund (LAPFUND) & another (Employment and Labour Relations Petition E053 of 2024) [2024] KEELRC 2266 (KLR)
The bottom line
#The Employment Court dismissed a challenge to staff promotions because the petitioner sued the wrong entities—the Fund itself cannot be sued, only its Board can.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of the Petitioner
The Petitioner has locus standi under the Constitution to institute proceedings alleging contravention or threatened contravention of the Constitution.
The court relied on the progressive 2010 Constitution, which allows any person to claim that a right or fundamental freedom in the Bill of Rights has been denied, violated or threatened, and on Articles 22 and 258 which permit every person to institute proceedings claiming the Constitution has been contravened or threatened with contravention. The preliminary objection on the petitioner's standing therefore failed.
Legal capacity of the 1st Respondent to be sued
The Local Authorities Provident Fund has no capacity to be sued; only its Board, established under section 5(8) of the Local Authority Act, is a body corporate with capacity to sue and be sued.
Section 5(1) of the Local Authority Act establishes the Fund while section 5(8) constitutes the Board as a body corporate with perpetual succession, power to sue and be sued in its corporate name. Since the statute expressly identifies the entity with capacity, the court declined to depart from the law. The Fund itself has no capacity to be sued.
Capacity of the 2nd Respondent (Acting CEO)
The Acting Chief Executive Officer is an employee who signed the memo on behalf of the Fund and has no capacity to be sued as employer.
The court found that the Acting CEO is not the employer of the Fund's staff; he is himself an employee who merely signed the impugned memo on behalf of the Fund. Suing him does not cure the misjoinder, and the petitioner failed to identify the rightful respondent.
Entitlement to conservatory orders
In any event, the Petitioner had not met the threshold for conservatory orders as the respondents followed the proper channel in promoting staff.
Applying the Munya principles and the MUHURI guidance on conservatory orders, the court found the respondents had reviewed their human resource instruments from March 2023 in consultation with SCAC, with ministry review and approval, before placing eight staff in new grades. The staff were already in their positions by 1st April 2024, so the petitioner failed to meet the threshold for conservatory orders.
Legal principles established
#- The Local Authority Provident Fund established under section 5(1) of the Local Authority Act has no legal capacity to sue or be sued; only the Board, as a body corporate under section 5(8), may sue and be sued.
- The Acting Chief Executive Officer of the Provident Fund is an employee, not the employer, and cannot be sued merely for signing a memo on behalf of the fund.
Court orders
#- 1.The Notice of Motion dated 16th April 2024 is dismissed
- 2.Each party to meet their own costs of the application
- Jurisdiction invoked
- Articles 22 and 258 of the Constitution of Kenya, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Local Authorities Provident Fund (LAPFUND) & another (Employment and Labour Relations Petition E053 of 2024) [2024] KEELRC 2266 (KLR)", Case Analysis (2024). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/2266/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.