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MagistrateStruck OutKitale SCC Claim No. E173 of 2024· [2025] KEMC 426 (KLR)
Lweya Kenya Company Ltd v Chief Officer, Ministry of Health & Sanitation & another (Civil Suit E074 of 2025) [2025] KEMC 426 (KLR)
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·~9 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#The Plaintiff entered into a 2020 contract with the County Government of Bungoma to construct a maternity wing at Koriosandet Dispensary for Kshs. 1,963,330. He alleged that after payments of Kshs. 1,594,565.94, a balance of Kshs. 286,333.03 remained unpaid, and through an amended plaint dated 9th May 2025 sued the Chief Officer, Ministry of Health and Sanitation, and the Chief Officer, Ministry of Roads and Public Works, seeking the balance, interest, costs and any other relief. The Defendants filed a Notice of Preliminary Objection dated 14th October 2025 contending that, under section 133 of the County Governments Act, county government employees cannot be sued in their official capacities for acts done in discharge of lawful duties, and seeking striking out of the suit. The Plaintiff opposed through a Replying Affidavit and Grounds of Opposition, relying on section 45 of the County Governments Act (chief officers as accounting officers), section 12 of the Government Proceedings Act, and Article 159(2)(d) of the Constitution. The court framed two issues: whether the objection was properly before it, and whether it was merited. Applying Mukisa Biscuits, it held the objection raised a pure point of law. It then held that section 133 shields county government staff from personal liability for good-faith acts; the County Government is a body corporate under section 6 and is the proper defendant; the authorities relied on by the Plaintiff did not assist; and chief officers can only be joined in execution or mandamus proceedings. The suit was struck out with costs to the Defendants, with liberty to file a fresh suit against a proper defendant.
Key legal issues
#01
Whether the preliminary objection is properly before the court
Holding
Properly before the court as it raises a pure point of law
Reasoning
Applying Mukisa Biscuit Manufacturing Co Ltd v West End Distributors, the objection questions capacity to be sued, which is a pure point of law, and its consequence would dispose of the suit summarily as there would be no defendants.
p. 4
02
Whether chief officers of a county government can be sued in their official capacities for money owed by the county government
Holding
No - they are improperly joined; suit struck out
Reasoning
Section 133 County Governments Act shields county government staff from personal civil liability for acts done in good faith in execution of duties. The County Government is a body corporate under s.6 and is the proper defendant. Chief officers as accounting officers can only be joined in execution or mandamus proceedings. No bad faith pleaded.
p. 8
Legal principles established
#- County government employees are shielded from personal liability in civil claims for acts or omissions done in good faith in execution of their duties (s.133 County Governments Act).
- Chief officers as accounting officers can only be joined in execution/mandamus proceedings against a county government.
Court orders
#- 1.This suit is struck out with costs to the Defendants/Applicants
- 2.The Plaintiff/Respondent is at liberty to file a fresh suit arising out of the circumstances of this case against the proper Defendant
- Jurisdiction invoked
- Small Claims Court jurisdiction under the Small Claims Court Act; Civil Procedure Rules (Order 50 rule 16)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lweya Kenya Company Ltd v Chief Officer, Ministry of Health & Sanitation & another (Civil Suit E074 of 2025) [2025] KEMC 426 (KLR)", Case Analysis (2025). Kitale SCC Claim No. E173 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2025/426/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.