https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/2019

**REPUBLIC OF KENYA** **IN THE EMPLOYMENT AND LABOUR RELATIONS COURT AT NAIROBI** **ELRC CAUSE NO. E721 OF 2022** **VERONICAH OCHIENG ODIPO……………………………....CLAIMANT** **VERSUS** **LAW SOCIETY OF KENYA…………………………………..RESPONDENT** **JUDGMENT** **Background** 1. The Claimant instituted this claim against the Respondent alleging that the latter unfairly terminated her services and subjected her to discriminatory treatment. She contends that following an advertisement by the Respondent on 13th July 2021 for vacancies in the positions of Director Ethics and Compliance and Director Practice Standards, she applied and was successfully interviewed for and on-boarded to the position of Director Practice Standards. 2. The Claimant avers that the parties signed a contract of service dated 23rd July 2021 to evidence the aforesaid engagement. She contends that the Respondent agreed to pay her gross monthly salary of Ksh. 327,972.00. 3. The Claimant avers that as a result of the Respondent’s offer to employ her, she sacrificed her career in private practice in order to take up the appointment. She avers that she dutifully reported to work from 2nd August 2021 and took up her duties in the new position. 4. The Claimant avers that on 10th August 2021, she was attacked by unknown persons whilst at the workplace. She contends that as a result of the incident, she was allowed to work from the office of the President of the Respondent. She avers that she alternately worked from the said office and home until 23rd December 2021 when the Respondent’s offices were closed for the Christmas break owing to security concerns and the outbreak of the Covid pandemic. 5. The Claimant contends that between 1st August 2021 and 28th February 2022, she undertook various assignments on behalf of and for the benefit of the Respondent. However, she avers that the Respondent, without explanation, stopped paying her salary from December 2021. She further avers that the Respondent stopped assigning her work and failed to allocate her a workstation from January 2022. 6. The Claimant contends that the Respondent’s actions made it difficult for her to continue working. She avers that the impugned actions caused her embarrassment and were discriminatory. She contends that she wrote to the Respondent on 1st March 2022 to express her frustrations regarding the way she was being treated. 7. The Claimant contends that despite her protestations, the Respondent did not accord her an opportunity to be heard. As such, it is her case that the Respondent’s actions resulted in the constructive termination of her contract of service. 8. The Claimant further avers that the Respondent blocked her access to its log in portal making it impossible for her to apply for renewal of her practicing certificate. She contends that a practicing certificate can only be processed upon submission of an online application through the portal. 9. The Claimant contends that the Respondent’s decision to block her access to the portal was discriminatory and has deprived her of the right to earn a living through private law practice. As such, she accuses the Respondent of having violated her rights to fair labour practice, fair administrative action, human dignity and the right not to be discriminated. Consequently, she prays for the various reliefs which are set out in the amended Memorandum of Claim. 10. The Respondent has opposed the claim. It contends that the Claimant was not lawfully engaged as its employee. It avers that the Claimant purported to apply for a position which was not vacant within its rank and file at the time. 11. The Respondent denies that it advertised a vacancy for the impugned position. It contends that its former President irregularly placed an advertisement dated 13th July 2021 for the position in the local dailies without the concurrence of the Council. As such, it contends that the advertisement was irregular, null and void. 12. The Respondent asserts that the moment it learned of the irregular advertisement, it issued a notice dated 14th July 2021 informing the public that the advertised positions were not vacant. As such, it contends that the Claimant had notice of the fact that the position she purported to apply for was not vacant at the time she placed her application. 13. The Respondent avers that as a matter of fact, the legitimate holder of the position of Director Practice Standards whose employment the President had purported to terminate, challenged the purported dismissal from service and the court issued an order nullifying the President’s edict. As such, it (the Respondent) avers that the position was never available to be filled by the Claimant. 14. The Respondent contends that it never allocated the Claimant work or a workstation because she was not its employee. It avers that this fact is demonstrated by the Claimant’s own contention that throughout the period under inquiry, she allegedly operated from the President’s office. As such, it is the Respondent’s case that the Claimant was perhaps the President’s employee. 15. The Respondent asserts that despite the Claimant not being in its employment, she irregularly received a sum of Ksh. 1, 311,888.00 from its coffers. It relies on the entries in the Claimant’s bank statement to anchor this contention. As such, it has counter-claimed for this amount from her. **Analysis** 1. The Respondent is a creature of statute established under section 3 of *the Law Society of Kenya Act*, Cap 18 Laws of Kenya. The law declares it (the Respondent) as a body corporate with perpetual succession capable of suing and being sued in its name thus making it a legal person. 2. As a legal person, the Respondent can only transact through the institutional structures which are set up under the aforesaid legislation. Section 15 ofAct provides for these structures. They include: the General Meeting; the Council; the Secretariat; and the Branches. 3. The General Meeting comprises of the congregation of members of the Respondent. Section 16 of the Act recognizes it (the General Meeting) as the supreme decision making body of the Respondent. It (the General Meeting) exercises this mandate by approving resolutions made by members and other organs of the Respondent. 4. On the other hand, the Council is the governing body of the Respondent. It is the organ which is responsible for the general management of the Respondent. 5. Section 17 of the Act provides for the membership of the Council. These are: the president; the vice-president; three representatives of the general membership of the Society, one of whom shall be an advocate of at least twenty-five years' standing; four upcountry representatives, who shall be persons who do not ordinarily practise in Nairobi or at the coast; three Nairobi representatives who shall be persons who ordinarily practise in Nairobi; and one coast representative, who shall be a person who ordinarily practises at the coast. 6. Section 17 (3) of the Act provides that members of the Council are elected by all members of the Respondent. Further and by virtue of section 21 of the Act, Council members hold office for a non-renewable period of two years. The Act does not provide for or recognize an entity called a Caretaker Council. This fact was affirmed by the High Court in the case of ***Odundo & 3 others v Havi & 20 others; Emukule & 22 others (Interested Parties) [2021] KEHC 431 (KLR)***. 7. Importantly, decisions regarding the day to day management of the Respondent’s affairs (including hiring and firing of employees on behalf of the Respondent) are made by the Council in its capacity as the governing body of the Respondent. Where necessary, the General Meeting approves the Council’s decisions through appropriate resolutions. As such and in my view, although the President of the Respondent is the Respondent’s spokesperson, he cannot arrogate himself powers to unilaterally hire and fire employees on the Respondent’s behalf without the involvement and concurrence of the Council. 8. The other governance organ of the Respondent in the Act is the Secretariat. This is the organ which is tasked with execution of the Respondent’s day to day activities as directed and guided by the Council. As such, the Secretariat reports to and is accountable to the Council. 9. Section 28 of the Act provides that the Secretariat shall be made up of various Directorates. It (the Secretariat) is headed by the Chief Executive Officer (the CEO) of the Respondent, who, in effect, is the principal executor of the Council’s decisions (see section 27 of the Act). 10. The Claimant contends that she came across an advertisement dated 13th July 2021 by the Respondent for the positions of Director Ethics and Compliance and Director Practice Standards whereupon she applied for the two positions. She contends that after she lodged the application, the Respondent interviewed and appointed her to the position of Director Practice Standards. 11. On the other hand, the Respondent contends that it never advertised the aforesaid positions. It contends that the positions were not vacant to warrant their advertisement. 12. The Respondent asserts that its (the Respondent’s) then President purported to unilaterally advertise the positions even though they were not vacant. It contends that the President’s action was irregular as he did not involve other members of the legitimate Council. 13. The Respondent contends that the President purportedly took the said action in consultation with a Caretaker Council which was illegal. It (the Respondent) avers that the moment it learned of the impugned advertisement, it (the Respondent) issued a public notice dated 14th July 2021 through the local dailies informing members of the public that the advertised positions were not vacant and that they should not apply for them (the positions). 14. A scrutiny of the evidence on record demonstrates that after the President of the Respondent placed an advertisement for the impugned positions (including the one for Director Practice and Standards) in a local daily on 13th July 2021, other members of the Respondent’s Council placed another advertisement in a local daily on 14th July 2021 advising members of the public that the positions were not vacant. In effect, the public is deemed to have had constructive notice through the notice of 14th July 2021 that the positions which had been advertised earlier as allegedly being vacant were in fact not vacant. 15. As stated earlier, the President of the Respondent is the spokesperson of the Respondent. However, this does not vest him with powers to make unilateral decisions on behalf of the Respondent including hiring and firing staff for the Respondent without the concurrence of the Council. Otherwise, there would be no need for the Council. As such, the purported advertisement of vacancies by the President on 13th July 2021 without the involvement and concurrence of other members of the elected Council of the Respondent was a nullity. 16. The Respondent has accused its President at the time of having purported to make the impugned appointments in consultation with a Caretaker Council. This contention is not without merit. 17. A perusal of the Respondent’s letter dated 1st July 2021 shows that a section of the Respondent’s members convened a Special General Meeting on 26th June 2021 and purported to install what they described as a Caretaker Council to run the affairs of the Respondent. This is further corroborated by the inscription of the names of the members of the Caretaker Council on the Claimant’s letter of appointment. 18. This evidence demonstrates that at the time the Claimant was appointed, the elected members of the Respondent’s Council had been edged out and purportedly replaced by a Caretaker Council. The Caretaker Council was subsequently declared a nullity by the High Court meaning that anything that was done under its auspices was a nullity (see ***Odundo & 3 others v Havi & 20 others; Emukule & 22 others (Interested Parties)*** (supra)). 19. According to the learned Judge in the aforesaid case, after a section of the Respondent’s members convened the Special General Meeting on 26th June 2021 and purported to appoint a Caretaker Council, the Respondent’s Council effectively became dysfunctional. On the one hand, the elected Council could no longer make binding decisions on behalf of the Respondent because it was not working with the President and Vice President of the Respondent. On the other hand, the Caretaker Council could not make valid and binding decisions on the Respondent’s behalf because it was improperly installed and was, in any event, not recognized by the law. 20. This state of affairs means that the Respondent had no legitimate Council from 26th June 2021 to run its affairs including hiring and firing of staff. As such, the Claimant cannot claim that her appointment in July 2021 which was done by the President in the absence of a legitimate Council, was valid. 21. The evidence on record also shows that immediately after the Claimant was appointed by the President of the Respondent to the impugned position on 23rd July 2021, other members of the Respondent’s elected Council wrote to her on 30th July 2021, barely seven days down the line, warning her that her appointment was illegitimate and that she was not recognized as an employee of the Respondent. It is surprising that the Claimant chose to ignore this warning given that under the legal framework which guides the Respondent’s operations, it is the Council which is charged with the general management of the Respondent’s affairs including hiring and firing of staff. 22. The court also notes that after the President purported to appoint the Claimant to the impugned position on 23rd July 2021, the court issued an order on 29th July 2021 vide Petition No. E117 of 2021 directing that the position should not be filled. Subsequently on 2nd December 2021, the court nullified the President’s edict which had purported to remove the earlier occupant of the position from office. The legal consequence of the aforesaid orders was that the impugned position remained unfilled from 29th July 2021 but was subsequently filled by one Mary Mwathi Kitonga, the previous occupant of the office, as from 2nd December 2021. 23. It is noteworthy that despite these developments, the Claimant did not move to court to seek to set aside the orders in Petition No. E117 of 2021. The Claimant insinuates that she could not take action to secure her purported position by seeking to discharge the impugned orders because she was not a party to the Petition. However, this cannot fly. Since she was allegedly working for the Respondent, she must have been aware of the case and ought to have applied to be made a party in the cause in order to vacate the orders which effectively declared the position she was allegedly holding as unoccupied from 29th July 2021. 24. Having regard to the foregoing, the court finds that the Claimant’s appointment to the position of Director Practice and Standards within the Respondent’s rank and file was a nullity from commencement. As such, it (the appointment) did not operate to create a valid employment relationship between the parties. Consequently, the Claimant cannot assert that the Respondent irregularly terminated her contract of service since there was no valid employment relationship between them in the first place. 25. That an improper appointment process cannot yield a valid employment relationship has been affirmed by the court through case law. This is the standpoint which was taken in ***Jackson Cheruiyot Rono v County Secretary Bomet & another [2017] KEELRC 116 (KLR)***. A similar position was expressed in ***Nyinge v County Government of Nyandarua & another [2022] KEELRC 12777 (KLR).*** 26. The Claimant’s counsel has relied on the indoor management rule or Turquand rule to urge the court not to allow the Respondent to hide behind non-compliance with its internal procedures to void the Claimant’s contract. This rule, developed in the celebrated case of ***Royal British Bank v Turquand (1856) 6 E&B 327***, allows third parties to assume that a company’s internal procedures and corporate formalities have been properly followed, preventing the company from voiding a contract due to internal irregularities. 27. However, in the case of ***Mutisya v Theuri & another [2023] KEELRC 3302 (KLR)*** which arose from similar circumstances as the instant case, the court rejected a similar attempt to invoke the indoor management rule to find that the Petitioner had been validly employed by the Respondent. This implies that one cannot invoke the rule to give legitimacy to a contract which is a nullity from inception. 28. The Claimant has also alleged that the Respondent blocked her access to its online portal thus making it impossible for her to apply for renewal of her practicing certificate. She contends that the Respondent’s actions infringed her right to practice law thus depriving her of her livelihood. 29. It is the Claimant’s case that the Respondent’s action in this respect was discriminatory. As such, she prays for a declaration in that regard. She also prays for an order to unblock the portal so that she can apply for her practicing certificate. 30. On the other hand, the Respondent has lodged a counter-claim for the money which the Claimant was allegedly paid between July 2021 and December 2021. It contends that the money was wrongly paid to her since there was no employment relationship between the parties. 31. The court has already declared that the purported appointment of the Claimant by the Respondent’s President as the latter’s Director Practice and Standards was irregular and therefore null and void *ab initio*. As such, there was no valid employment relationship between the parties from inception. 32. There having been no valid employment relationship between the parties, the court cannot adjudicate on the ancillary disputes between them relating to: whether the Respondent ought to be compelled to unblock the Claimant’s access to its online portal in order for her to renew her practicing certificate; and whether the Claimant should be compelled to refund the Respondent the money which she was allegedly irregularly paid. As has been previously stated, this court can only adjudicate on such ancillary disputes if they arise from and are founded on a valid employment relationship. Absent this, the court has no jurisdiction to inquire into the matters (see ***Kenya Medical Research Institute v Davy Kiprotich Koech [2018] KECA 128 (KLR)***). 33. The Respondent has placed heavy reliance on the case of ***Junction Forex Bureau Limited v Rafique [2025] KEELRC 2136 (KLR)*** to urge the court to allow the counter-claim. However, that case is distinguishable from the case before court. 34. In the aforesaid case, the court assumed jurisdiction over the dispute because there had been an existing employment relationship between the parties at the time the cause of action arose. Because of this, the court was able to issue an order for recovery of the funds which the employee had irregularly converted to his own use. In contrast in the instant case, the parties had no valid employment relationship between them at the time the Claimant was allegedly paid the funds which are sought to be recovered through this action to enable the court to assume jurisdiction over the claim for restitution of the money. 35. This court is alive to the recent Supreme Court decision in the case of ***Moi Teaching and Referral Hospital & 3 others v Gikenyl & 74 others [2026] KESC 50 (KLR)*** where the court held that the Employment and Labour Relations Court has jurisdiction over some pre-employment disputes stemming from a recruitment process. However, the instant dispute is not a pre-employment dispute. It is a dispute regarding whether the purported contract of service between the parties was, in fact and law, legitimate. 36. The court has returned a verdict that the contract was a nullity *ab initio*. As such, it (the court) cannot rely on the aforesaid Supreme Court decision to purport to adjudicate on: whether the Respondent improperly blocked the Claimant’s access to its portal thus denying her the right to renew her practicing certificate; and whether the Respondent is entitled to recover money which it paid the Claimant pursuant to a non-existent employment relationship. **Determination** 1. The upshot is that the court finds that there was no valid employment relationship between the parties from inception. 2. As such, the Claimant’s claims for: salary in lieu of notice; 3 months’ unpaid salary; compensation for 14 unpaid leave days; 12 months compensation for unfair and unlawful termination of employment by way of constructive dismissal; service pay; and certificate of service are all dismissed. 3. The court having arrived at the conclusion that the parties did not have a valid employment relationship from inception, it finds that it does not possess the requisite jurisdiction to adjudicate on the ancillary claim by the Claimant for the Respondent to unblock her access to its portal to enable her to apply for renewal of her practicing certificate and the Respondent’s counter-claim for recovery of the money which was paid to the Claimant under the irregular relationship. As such, it downs tools in respect of the two claims and issues no orders in respect thereof. 4. Each party to bear own costs of the action. **Dated, signed and delivered on the 15th day of July, 2026** **B. O. M. MANANI** **JUDGE** In the presence of: …………….for the Claimant …………….for the Respondent **ORDER** **In light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.** **B. O. M MANANI**