Mtai & 9 others v Anglican Church of Kenya & 2 others (Appeal E008 of 2024) [2025] KEELRC 1988 (KLR)

The court relied on Order 1 Rules 9 and 10 of the Civil Procedure Rules, 2010, which provide that no suit shall be defeated by misjoinder or non-joinder and permit substitution or addition of parties. It also relied on William Kiprono Towett v Farmland Aviation Ltd and Consolata Kihara v Director Kenya Trypanosomiasis Research Institute, holding that joinder issues are curable and not significant absent miscarriage of justice. Further, under the Employment Act and ELRC Act, the definition of employer includes an agent and the person who issued the letter of appointment.

The court examined Canon XXI of the Anglican Church of Kenya Constitution, which provides for appeals to the Provincial Tribunal from judgments of the Diocesan Tribunal or the Bishop. Since the Respondents did not identify which internal mechanisms the Appellants failed to resort to, and did not rebut the assertion that no such structures existed for the new Kapenguria Diocese, the doctrine of exhaustion was not established. It was a matter requiring pleading and proof by evidence, not a pure point of law.

The court adopted the classic statement in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, which defines a preliminary objection as in the nature of a demurrer raising a pure point of law, and which cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. Applying this, the exhaustion ground, requiring evidence, failed the threshold.