[2008] KEHC 3622 (KLR)
The court held that the suit against the appellant, a school, was not defective as the name of a school is considered a business name under Order 29 of the Civil Procedure Code, which allows for actions against such entities. The court found that the general pleading in the defence was sufficient notice of the...
Source-derived case information.
- Citation
- [2008] KEHC 3622 (KLR)
- Parties
- Appellant: Kanyuambora Sec. School; Respondent: Antony Njiru Mucheke
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 54 of 2004
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Capacity to Sue, Preliminary Objection, Employment Dismissal, Notice Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kanyuambora Sec. School
Appellant
Antony Njiru Mucheke
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant, a school, has the legal capacity to be sued.
- 2 Whether sufficient notice was given for the preliminary objection regarding capacity.
- 3 Whether the trial magistrate erred in disallowing the preliminary objection and ordering the suit to proceed.
Ratio Decidendi
The court held that the suit against the appellant, a school, was not defective as the name of a school is considered a business name under Order 29 of the Civil Procedure Code, which allows for actions against such entities. The court found that the general pleading in the defence was sufficient notice of the intention to raise a preliminary objection, but ultimately determined that the trial magistrate did not err in disallowing the objection and ordering the suit to proceed. The court emphasized the need to bring long-pending suits to a conclusion and dismissed the appeal, directing the parties to proceed to hearing.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The parties are ordered to proceed to hearing forthwith.
Full Case Text
Judgment text and source record
16 paragraphs
KANYUAMBORA SEC. SCHOOL………………………….APPELLANT
VERSUS
ANTONY NJIRU MUCHEKE………………….....……....RESPONDENT
JUDGMENT
This appeal concerns a ruling by R.M. in Senior Resident Magistrate Civil Case No. 189 of 1999 made on 22/9/2004. The grounds of appeal are listed in the Memorandum of appeal numbering 4. The suit was concerning the dismissal of the Respondent from the appellant’s employment.
On 22/9/2004 the Appellant raised a Preliminary Point that the Appellant being a school has no capacity to be sued. In his ruling the Resident Magistrate made a finding that proper Notice to raise a Preliminary Objection was essential giving particulars in support of the Preliminary Objection. As it is the Defendant (Appellant) made a general pleading of intention to raise Preliminary Objection at the hearing. The learned trial Magistrate disallowed the Preliminary Objection and ordered hearing of suit to proceed. The grounds of appeal were argued all together. Appellant submitted that the general pleadings in the defence was sufficient Notice, and it was not proper to state that counsel of Appellant ambushed the counsel for defendant. After the hearing of both parties and because the Trial Magistrate failed to find that the appellant was not a legal body and therefore ought not to have ordered the suit to proceed. Order VI Rule 7 permits a party to raise any point of law in his pleading. Therefore the Resident Magistrate was in error in finding Notice had not been given. Again apart from saying that the issue of capacity is a weighty matter the Trial Magistrate did not deal with the issue of the Appellant being with capacity to be sued. The civil procedure provides for action by firms and persons carrying on business in the name of a firm or in a name that is not theirs Section Order 29 C.P.C. Disclosure of the real legal owners may be made on request. The name of a school is a business name and it falls under this order. In the circumstances, I do not find that the suit against the appellant is defective. Since this suit has been pending since 1999. There is much delay and suits should be brought to an end within a reasonable time. I dismiss the appeal and order the parties to proceed to hearing forthwith. The costs of appeal shall be in the cause.
Dated this 16th January, 2008.
J. N. KHAMINWA
JUDGE
16/1/2008
Khaminwa – Judge
Njue – Clerk
Mr. Kathungu
Read in open court.
J. N. KHAMINWA
JUDGE