Awuor v Board of Management Nairobi International School (Appeal E370 of 2024) [2025] KEELRC 2528 (KLR)

The court found that what was denied in the response to the claim was the enjoinment of the Board of Management as a non-legal entity, amounting to a misjoinder, which the respondent answered on the merits. The claimant's certificate of service named Nairobi International School as employer while the respondent's documents named Safe Haven Limited, so the fact of who the employer was had not been ascertained. A preliminary objection cannot lie where a fact must be ascertained. The misjoinder was curable by amendment, and the suit attracted a substantive defence.

The court applied the classic definition in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd, holding that a preliminary objection cannot be raised if any fact has to be ascertained. On the documents before the trial court, the certificate of service indicated the appellant was employed by Nairobi International School, while the offer of employment and contract indicated the employer as Safe Haven Limited, leaving the employer's identity unresolved on the pleadings.

The court found the misjoinder could have been cured by amending the claim to omit the words 'Board of Management'. The suit was not helpless as the respondent had responded substantially on the merits. The court upheld the authority of William Kiprono Towett & 1597 Others v Farmland Aviation Ltd & 2 Others on Order 1 Rule 9, to the effect that misjoinder or non-joinder cannot defeat a suit.