Lweya Kenya Company Ltd v Chief Officer, Ministry of Health & Sanitation & another (Civil Suit E074 of 2025) [2025] KEMC 426 (KLR)

d) Any other relief this Honourable Court deems fit and just to grant The foregoing prompted the Defendants/Applicants to file a Notice of Preliminary Objection dated 14th October 2025, which this court seeks to determine through this ruling. The Defendants/Applicants pleaded that they were improperly joined to this suit in contravention of section 133 of the County Governments Act, which is explicit that county government employees cannot be sued in civil suits in their official capacities for their acts or omissions in the discharge of their lawful duties. The Defendants/Respondents thus prayed that this suit be struck out. The Plaintiff/Respondent opposed the Notice of Preliminary Objection herein through a Replying Affidavit sworn on 24 th October 2025 by Stephen Natembeya Sibalile as well as the Grounds of Opposition dated 24 th October 2025. One may question why the Plaintiff/Respondent filed a Replying Affidavit and Grounds of Opposition to oppose the instant Notice of Preliminary Objection. Order 50 rule 16 of the Civil Procedure Rules permits a party to file a Replying Affidavit or Grounds of Opposition. A Replying Affidavit is usually confined to issues of fact, while Grounds of opposition raise issues of law. Where a party relies on both issues of law and fact to oppose an application, like in this case, such a party is at liberty to file both a Replying Affidavit and Grounds of Opposition in opposition to the application at hand (See Trust Bank Limited v Mohamed Bakarimbwana [2004] KEHC 295 (KLR)). The gist of the Plaintiff/Respondent’s opposition to the Notice of Preliminary Objection herein is that the Defendants/Applicants were properly joined to this case since they have been sued in their official capacities not personal capacities given that by dint of section 45 of the County Governments Act Kitale SCC Claim No. E173 of 2024 Page 2 of 9 Ruling

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they are the accounting officers and administrative heads of the Ministries that reportedly owe the Plaintiff money. It was also pleaded by the Plaintiff/Respondent that section 12 of the Government Proceedings Act permits suits against government departments and officers in their official capacity. The Plaintiff/Respondent also urged this court, in the alternative, to find that the question of misjoinder was a procedural technicality which this court ought not prioritize over substantive justice per Article 159 (2) (d) of the Constitution. Therefore, the Plaintiff/Respondent submitted that the issue of misjoinder was a defect curable under Article 159 (2) (d) of the Constitution. ANALYSIS AND DETERMINATION This court has duly considered the pleadings, written submissions, and the authorities relied upon by the parties herein. The issues that commend to this court for determination are whether the Notice of Preliminary Objection herein is properly before this court, and whether the Notice of Preliminary Objection herein is merited. Whether the Notice of Preliminary Objection is properly before this court On what constitutes a Preliminary Objection, this court seeks refuge from Mukisa Biscuit Manufacturing Co Ltd Vs West End Distributors Limited (1969)E.A 696 , where it was held that: “A Notice of Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is exercise of judicial discretion.” Kitale SCC Claim No. E173 of 2024 Page 3 of 9 Ruling

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The essence of a preliminary objection was given by Law, JA and Sir Charles Newbold P. in Mukisa Biscuits Manufacturing Co Ltd case (supra) where at page 700, Law, JA stated that: “…a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit…” From the authority cited above, it is clear that the first ingredient of a Notice of Preliminary Objection is that it must be based on pure points of law. The Defendant/Applicants are questioning whether they were properly joined to this suit. The capacity to be sued is a pure point of law. In addition to that, it is noteworthy that the consequence of finding that the Defendants/Applicants were improperly joined to this suit will determine this suit summarily since there will be no Defendants to this suit. c Given the foregoing, this court finds that the Notice of Preliminary Objection filed herein is properly before this court since it ticks all the boxes set out in the Mukisa Biscuits case (supra). Whether the Notice of Preliminary Objection is merited The question of whether county government employees can be sued in their official capacities arising from their acts or omissions in the discharge of their official duties is addressed under section 133 of the County Governments Act as follows: Section 133 of the County Government Act provides: (1)No act, matter or thing done or omitted to be done by— (a)any member of the county government or its administration board or committee; Kitale SCC Claim No. E173 of 2024 Page 4 of 9 Ruling

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(b)any member of the county assembly; (c)any member of staff or other person in the service of the county government; or (d) any person acting under the direction of the county government, shall, if that act, matter or thing was done or omitted in good faith in the execution of a duty or under direction, render that member or person personally liable to any civil liability. Courts in this jurisdiction have had to pronounce themselves on the import of section 133 of the County Government Act set out above. In John Mining Temoi & Another v Governor of Bungoma County & 17 Others [2014] eKLR, the court held; The Chairman of a County Public Service Board is not liable to be sued or to sue on behalf of the said Board. The County Public Service Board as a body corporate, is a legal entity capable of suing and being sued under section 57 of the County Government Act, 2012. It therefore follows that the Chairman should not have been sued or enjoined in these proceedings for the actions and omissions of the County Public Service Board which is a legal entity on its own. In this regard, the inclusion of the Chairman of that Board in petition No.2 ”A” of 2014 was irregular. Similarly, in John Rimui Waweru & 3 Others v Githunguri Constituency Ranching Co. Ltd & 5 Others [2015] eKLR, the court held; The plaintiffs have admitted in their submissions that they seek no personal liability as against the 5th Defendant, and therefore are suing him from acts arising from execution of his office as Governor of Kiambu County. There is thus a question of law raised as to Kitale SCC Claim No. E173 of 2024 Page 5 of 9 Ruling

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whether in the circumstances the 5th Defendant can be sued in his capacity as Governor of Kiambu County, and the Court in this regard notes that section 133 of the County Government Act [No. 17 of 2012] provides that members, staff and servants of a County Government are exempted from personal civil liability for any act done in good faith in the execution of their duty or upon directions. Article 176 of the Constitution in this respect states that a County Government for each County shall consist of a County Assembly and a County Executive, and under Article 179, the Governor is a member of the County Executive and also the Chief Executive of the County. To this extent, the Governor is both a member and staff of the County Government and is to be afforded the protection in section 133 of the County Government Act. The suit against the 5th Defendant is therefore improperly brought and is hereby struck out with costs payable to the 5th Defendant.’ The holdings above on the import of section 133 of the County Government Act was also followed by Cherono J in Obiero v County Government of Bungoma & 3 others (Environment and Land Petition E005 of 2024) [2025] KEELC 5420 (KLR) and Temba & another v Governor Bungoma County Government & 3 others (Environment & Land Case E007 of 2023) [2023] KEELC 20643 (KLR). The common thread running through the authorities above is that county government employees are shielded from personal liability in civil claims for their acts or omissions done in good faith in the execution of their duties. It is also noteworthy that the authorities cited by the Plaintiff/Respondent in support of his position that the Defendants/Respondents were properly joined to this suit do not support the said position advanced by the Plaintiff/Respondent in opposition to this Notice of Preliminary Objection. Kitale SCC Claim No. E173 of 2024 Page 6 of 9 Ruling

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For instance, in Republic Vs. Ministry of Education and 2 others exparte Basic Education Assistance Module (2012) eKLR, that was a judicial review case where it is permissible for a government employee to be sued in their official capacity. Further, there was no determination in that case on the import of section 133 of the County Government Act. Further, in Kenya Union of Pre-Primary Education Teachers v Chief Officer, Finance Embu County Government & another (Cause E008 of 2022) [2022] KEELRC 13203, and John Mining Temoi & Another Vs. Governor of Bungoma County & 17 Others (2014) eKLR, that the Plaintiff/Respondent placed reliance on, the courts were emphatic that county government employees cannot be sued in their personal or official capacity for acts or omissions done in good faith in execution of their official duties. Section 12 of the Government Proceedings Act, which the Plaintiff/Respondent sought refuge in, is also not applicable in this case since the said provisions of the law are limited to the authority of a person or body to sue the Attorney General on behalf of the government. Be that as it may, it is given that the County Government of Bungoma contracted the Plaintiff/Respondent to construct the maternity wing at Koriosiandet Dispensary. That means that whoever allegedly owes the Plaintiff/Respondent money is the County Government of Bungoma. Per section 6 of the County Governments Act, the County Government of Bungoma is a body corporate capable of suing and being sued. Therefore, the Defendants/Respondents, who are chief officers working for the County Government of Bungoma, cannot be called upon through this suit to pay the Plaintiff/Respondent the alleged outstanding contract sum of Kshs. 286,033.03/= allegedly owed to him by the County Government of Bungoma. It matters not that the chief officers herein are the accounting officers of the Kitale SCC Claim No. E173 of 2024 Page 7 of 9 Ruling

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county government departments required to play a role in processing payments for the Plaintiff/Respondent. Chief officers who are their respective ministries’ accounting officers can only be joined to a civil claim for money owed by a County Government to another person during execution proceedings against a county government for payment of a sum of money. That may arise during Judicial Review proceedings for an order of mandamus requiring a public entity to pay money to another person or entity, or during Notice to Show Cause proceedings per the provisions of the Government Proceedings Act. In any event, the pleadings filed by the Plaintiff/Respondent herein do not show if the Defendants/Applicants herein acted in bad faith or omitted to act in bad faith in causing the County Government of Bungoma to reportedly fail to pay the Plaintiff/Respondent Kshs. 286,333.03/=. It is against this backdrop that this court finds and holds that there was no justification whatsoever for the Defendants/Applicants to be joined to this suit. Having found and held that the Defendants/Respondents were improperly joined to this suit, this court is well aware that Order 9 Rule 1 of the Civil Procedure Rules provides that no suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. In the circumstances, this court will grant the Plaintiff/Respondent an opportunity to file a fresh suit against a proper Defendant. DETERMINATION Kitale SCC Claim No. E173 of 2024 Page 8 of 9 Ruling

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For the reasons above, the Defendants/Applicants’ Notice of Preliminary Objection dated 14th October 2025 is merited with the consequence that the following orders commend to this court: a) This suit is struck out with costs to the Defendants/Applicants. b) The Plaintiff/Respondent is at liberty to file a fresh suit arising out of the circumstances of this case against the proper Defendant. It is so ordered. READ, SIGNED and DELIVERED in open court at Bungoma this 11 th day of November 2025 T.O. OMONO SENIOR RESIDENT MAGISTRATE In the presence of: Ms. Walaka for the Defendants/Applicants C/A: Mr. Rioba Kitale SCC Claim No. E173 of 2024 Page 9 of 9 Ruling

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