[2019] KEELRC 711 (KLR)
The court held that the joinder of the 3rd Respondent, Wycliffe Ambetsa Oparanya, in his personal capacity was improper because the acts complained of were performed in his official capacity as Chair of the Council of Governors, a body corporate established under the Intergovernmental Relations Act 2012. The suit...
Source-derived case information.
- Citation
- [2019] KEELRC 711 (KLR)
- Parties
- Applicant: Kenya National Union of Nurses; Respondent: Murang’a County Public Service Board; Respondent: Murang’a County Government; Respondent: Wycliffe Ambetsa Oparanya
- Court
- Employment and Labour Relations Court
- Court Station
- Employment and Labour Relations Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Cause 18 of 2019
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Regarding Misjoinder
- Outcome
- Preliminary objection upheld in part; 3rd Respondent struck out for misjoinder; suit survives against other respondents.
- Judges
- AN Makau
- Legal Topics
- Misjoinder of Parties, Personal Liability of Office Bearers, Functions of Council of Governors
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya National Union of Nurses
Applicant
Murang’a County Public Service Board
Respondent
Murang’a County Government
Respondent
Wycliffe Ambetsa Oparanya
Respondent
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Regarding Misjoinder
Legal Issues
- 1 Whether the joinder of the 3rd Respondent, Wycliffe Ambetsa Oparanya, in his personal capacity is proper in light of the Intergovernmental Relations Act 2012.
- 2 Whether the suit against the 3rd Respondent should be struck out for misjoinder.
Ratio Decidendi
The court held that the joinder of the 3rd Respondent, Wycliffe Ambetsa Oparanya, in his personal capacity was improper because the acts complained of were performed in his official capacity as Chair of the Council of Governors, a body corporate established under the Intergovernmental Relations Act 2012. The suit related to actions of the Council, not personal acts of the 3rd Respondent, and thus any proceedings should be against the office or the Council itself, not the individual. The court found that naming the individual was a misjoinder and struck out his name from the proceedings, awarding him costs. The suit otherwise survives against the remaining respondents.
Court Disposition
Preliminary objection upheld in part; 3rd Respondent struck out for misjoinder; suit survives against other respondents.
Orders
- The name of the 3rd Respondent, Wycliffe Ambetsa Oparanya, is struck out of the proceedings.
- Costs of the 3rd Respondent to be borne by the Claimants for the misjoinder.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE EMPLOYMENT & LABOUR RELATIONS COURT OF KENYA
AT NYERI
CAUSE NO. 18 OF 2019
KENYA NATIONAL UNION OF NURSES...............................................CLAIMANT
VERSUS
MURANG’A COUNTY PUBLIC SERVICE BOARD..................1ST RESPONDENT
MURANG’A COUNTY GOVERNMENT.....................................2ND RESPONDENT
WYCLIFE AMBETSA OPARANYA.............................................3RD RESPONDENT
RULING
1. The objection is to the joinder of one Wycliffe Ambetsa Oparanya the Chair of the Council of governors who is sued as the 3rd Respondent. It is asserted by Mr. Lotai that his joinder in personal capacity is untenable granted provisions of the Intergovernmental Relations Act 2012. He cites Section 19 and 20 in particular and asserts the elective position held by the 3rd Respondent is executed in terms of the Act of parliament and the 3rd Respondent cannot be personally liable as the Council of governors comprising the 47 County governors is the body that makes decisions as Council of Governors or through its committees set up pursuant to the Act. As such he argues the position is temporary and it would be unconscionable to have a personal suit subsist against the Chair since the Council of Governors is a body corporate capable of suing and being sued. He makes reference to a suit determined by Rika J. in Cause 36 of 2019 in Mombasa.
2. Mr. Odongo for the Respondent (Claimant) to preliminary objection submits that the objection is misplaced as the jurisdiction and discretion of the court to hear and determine facts is not capable to be dislodged through the preliminary objection as there is authority for the court to hear and determine the suit. He submits that granted the findings in the Supreme Court in the case No. 36 of 2014 between IEBC v Jane Cheberenger & Another [2015] eKLRthe court ought not to strike out the suit peremptorily. He seeks to rely on the case of Republic v Eldoret Water & Sanitation Company Ltd Ex parte Booker Onyango & 2 Others [2007] eKLR where the court declined grant of the preliminary objection where facts have to be ascertained. He submitted lastly that the 3rd Respondent had not demonstrated sufficient basis for the exclusion from proceedings and the consensus alleged in the execution of the order of 15th February 2019. He urged court not to dismiss the suit in entirety. He prayed the preliminary objection be dismissed with costs.
3. The 3rd Respondent’s Counsel submitted briefly in response that the 3rd Respondent holds an elective position which comes to an end in December 2019 and it would be untenable to have proceedings subsist even after he ceases holding that position against him for decisions made when he was Chair. The Advocate for 3rd Respondent thus urged the grant of the preliminary objection.
4. The Preliminary Objection in as far it relates to misjoinder seeks the 3rd Respondent’s exclusion from the proceedings herein. Under Section 19(2) of the Intergovernmental Relations Act 2012 the Council of Governors established in Section 19 has functions spelt out in Section 20. The Council of Governors has a Chair who presently happens to be Hon. Wycliffe Ambetsa Oparanya the Governor for Kakamega County. He is presently the Chair of the Council of Governors and as 3rd Respondent seeks to have been sued in his personal capacity. If the action against him is in respect of his personal acts then he ought not have been sued in Nyeri County as he is a Governor in Kakamega. It seems the suit relates to circular from the Council of Governors and as such the suit against him is improper as he did not act as Wycliffe Oparanya but as Chair of the Council of Governors. If the suit had named the chair of Council of Governors without specifying his name it could subsist as it is against the office and not the individual. In my considered view the joinder of 3rd Respondent is misplaced and his name is struck out of these proceedings with costs to the 3rd Respondent. The suit survives but the costs of the 3rd Respondent to be borne by the Claimants for the misjoinder.
It is so ordered.
Dated and delivered at Nyeri this 7th day of October 2019
Nzioki wa Makau
JUDGE
I certify that this is a
true copy of the Original
Deputy Registrar