[2013] KEELRC 15 (KLR)
The court found that the Claimant failed to provide credible evidence that the Respondent's advocate was unqualified or that the address used was fictitious. The Law Society of Kenya correspondence did not support the Claimant's assertions. The application was also found to be incompetent as it was brought under a...
Source-derived case information.
- Citation
- [2013] KEELRC 15 (KLR)
- Parties
- Applicant: Agnes Nthenge; Respondent: Executive Committee A.I.C. Sengani D.C.C
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Cause 1739 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objections and Application to Strike Out Response
- Outcome
- Both the Claimant's application and the Respondent's preliminary objection are rejected.
- Legal Topics
- Striking Out Pleadings, Capacity to Sue, Qualification of Advocates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Agnes Nthenge
Applicant
Executive Committee A.I.C. Sengani D.C.C
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objections and Application to Strike Out Response
Legal Issues
- 1 Whether the Statement of Response should be struck out for being defective or a sham.
- 2 Whether the Respondent's advocate is qualified and authorized to act.
- 3 Whether the Respondent is a legal entity capable of being sued.
Ratio Decidendi
The court found that the Claimant failed to provide credible evidence that the Respondent's advocate was unqualified or that the address used was fictitious. The Law Society of Kenya correspondence did not support the Claimant's assertions. The application was also found to be incompetent as it was brought under a repealed statutory provision. Regarding the Respondent's preliminary objection on capacity, the court held that any issue with the Respondent's legal status could be rectified by amendment before the full hearing, and it is the Claimant's responsibility to ensure the proper party is before the court. Both the Claimant's application and the Respondent's preliminary objection...
Court Disposition
Both the Claimant's application and the Respondent's preliminary objection are rejected.
Orders
- The Application by the Claimant dated 3rd February 2012 is rejected.
- The Preliminary Objection by the Respondent is rejected.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE INDUSTRIAL COURT AT NAIROBI
CAUSE NUMBER 1739 OF 2011
BETWEEN
AGNES NTHENGE……………………………………..…………………………...CLAIMANT
VERSUS
EXECUTIVE COMMITTEE
A.I.C. SENGANI D.C.C…………………………………………………………………………RESPONDENT
Rika J
CC. Leah Muthaka
J. W. Madahana Advocate for the Claimant
Mr. Sawe instructed by J. K. Kiplagat & Company Advocates for the Respondent
______________________________________________________________
RULING
The Claimant filed a Notice of Motion dated 3rd February 2012, seeking to have the Statement of Response struck out and Award entered in favour of the Claimant.
The motion is expressed to be made under Section 12(5) of the Labour Institutions Act No. 12 of 2007, and is based on the following grounds:-
The address of the Respondent’s Advocates is fictitious
The person who signed the pleadings is not qualified to practice law on his own
The Statement of Response is a sham and not supported by evidence
Pleadings of the Respondent are meant to delay the fair and expeditious disposal of the claim.
The application is supported by the affidavit of the Claimant Agnes Nthenge, sworn on 3rd February 2012.
The Respondent swore and filed a replying affidavit through its Secretary, on 21st March 2012. It states its Advocates are duly qualified and authorized to act as its representatives. At the same time, the Respondent raises its own preliminary objection on the validity of the claim filed herein, stating that the Claimant had filed her claim against a legal non-entity.
Parties agreed to have these technicalities disposed of by way of written submissions. The Claimant filed her submissions on 2nd April 2013, and the Respondent on 16th April 2013.
Upon reading the submissions and scrutinizing the pleadings, the Court finds and orders:-
The advocate acting for the Respondent is duly qualified and authorized to act as such. The allegation that the Respondent’s Advocates used fictitious address or are unqualified to act, has no support in evidence. It would not have been possible to the Claimant to serve the Respondent if the Respondent’s Advocates’ address is unknown. The bundle of letters from the Law Society of Kenya do not support the Claimant’s position. The application is incompetent, having been brought under a provision of the Law that has been repealed.
The preliminary objection by the Respondent on the capacity of the Respondent to be sued is not based on substantive ground. If there is reason for the Claimant to amend her pleadings to name the Respondent correctly, this can always be achieved before the full hearing. In any event if the Claimant proceeds against a non-entity, the Court shall on evaluation of evidence declare there was no proper Respondent, and the Claim shall fail. It is for the Claimant to show the proper Respondent has been brought before the Court.
In the end, the Court finds no merit in both the Claimant’s application and the
Respondent’s preliminary objection.
The Application by the Claimant dated 3rd February 2012 is rejected
The Preliminary Objection by the Respondent is rejected
Parties to schedule the Claim for full hearing at the Registry.
Dated and delivered at Nairobi this 20th day of December 2013
James Rika
Judge