[2015] KEHC 3078 (KLR)
The court held that the plaintiff's suit was not fatally defective merely because it was brought against the Board of Governors instead of the Board of Management. The change in the law under the Basic Education Act, 2013, which replaced Boards of Governors with Boards of Management, did not affect the capacity to...
Source-derived case information.
- Citation
- [2015] KEHC 3078 (KLR)
- Parties
- Plaintiff: William Omakada; Defendant: The Board of Governors, Mukuyuni Primary School
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Land Case 53 of 2015
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection Before Hearing of Main Suit
- Outcome
- preliminary objection dismissed with costs to the plaintiff
- Judges
- EO Obaga
- Legal Topics
- Misjoinder of Parties, Misdescription of Parties, Amendment of Pleadings, Capacity to Sue, Education Institutions Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
William Omakada
Plaintiff
The Board of Governors, Mukuyuni Primary School
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection Before Hearing of Main Suit
Legal Issues
- 1 Whether the suit is incompetent due to the plaintiff suing the Board of Governors instead of the Board of Management of the primary school.
- 2 Whether misdescription or misjoinder of a party renders a suit fatally defective and liable to be struck out.
Ratio Decidendi
The court held that the plaintiff's suit was not fatally defective merely because it was brought against the Board of Governors instead of the Board of Management. The change in the law under the Basic Education Act, 2013, which replaced Boards of Governors with Boards of Management, did not affect the capacity to amend the pleadings to reflect the correct party. The court emphasized that such misdescription is a technicality that can be cured by amendment and should not defeat substantive justice. The authorities cited by the defendant were distinguished as not relevant to the present issue, as they dealt with lack of capacity or limitation, not mere misdescription. Accordingly, the...
Court Disposition
preliminary objection dismissed with costs to the plaintiff
Orders
- The preliminary objection is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KITALE
LAND CASE NO. 53 OF 2015
WILLIAM OMAKADA.....................................................PLAINTIFF
VERSUS
THE BOARD OF GOVERNORS
MUKUYUNI PRIMARY SCHOOL................................ DEFENDANT
R U L I N G
1. The plaintiff filed this suit against the defendant on 14/4/2015. He contemporaneously filed an application seeking injunctive orders against the defendant. The defendant filed a replying affidavit to the application by the plaintiff. Before the application could be set down for hearing, a preliminary objection was taken on behalf of the defendant on the following grounds:-
(i) That the instant suit offends the provisions of the Basic Education act.
(ii) That the entire suit and the application dated 10/4/2015 is bad in law and incompetent.
2. Mr. Nyamu for the defendant argued that primary schools are not run by Board of Governors but by Board of Management and that since the plaintiff sued the Board of Governors of Mukuyuni Primary School, the suit is incompetent and cannot be maintained. He further argued that no enforceable order can result from the said suit. He therefore submitted that the entire suit should be struck out with costs.
3. Mr. Bundi for the plaintiff opposed the preliminary objection arguing that non joinder or misjoinder of a party in a suit cannot render a suit incompetent and that in any case, this is something which can be cured by amendment. He further argued that misdescription of a party cannot lead to striking out of the suit.
4. Mr. Nyamu in supporting of his argument cited Kisumu Civil Appeal No. 256 of 1997 between Mwori Self Help Group and Nzoia Sugar Company Limited. He also relied on Nairobi HCCC No. 607 of 1999 Maurice Ooko Otieno -vs Meter Misericcordiae Hospital andKitale ELC No. 66 of 2013 George Kamau Kimani & 5 Others -vs- County Government of Trans-Nzoia.
5. Under the Education Act Cap 211 Laws of Kenya (now repealed), management of Primary Schools were run by a Board of Governors. This was provided under Section 6 of the Repealed Act. When the Basic Education Act of 2013 came into force on 25/1/2013, it repealed the Education Act and by virtue of Section 55 of the new Act, the management of Primary Schools was to be run by Board of Management.
6. This suit was filed on 14/4/2015 two years after repeal of the Education Act which provided for management of Primary Schools by Board of Governors. The plaintiff herein brought the suit against the Board of Governors of Mukuyuni Primary School. The question which then arises is whether a suit can be defeated by mere misdescription of parties or joinder or non joinder of parties. In the present case the issue is not joinder or misjoinder of a party. The issue as I understand it is that the defendant is contending that it is the Board of Management which should have been sued and not the Board of Governors. The issue here is not capacity of being sued. The plaintiff brought the suit against the Board of Governors who have since been replaced by Board of Management. This cannot defeat a suit. This is something which can be cured by an amendment. The courts should dispense substantive justice as opposed to technical justice. The authorities relied by Mr. Nyamu are all not relevant. The Court of Appeal decision was dealing with a self help group which had no capacity to sue or be sued in its own name. In the case of Maurice Otieno Ooko and Mater Misericcordiae Hospital, the issue there was lack of capacity. An amendment had been allowed to cure the anomaly but the judge held that the new amendment had been caught up by limitation. In the case at the Environment and Land Court at Kitale between George Kamau Kimani & Others -vs- County Government of Trans-Nzoia, the issue in that one was amendment of pleadings without leave of court.
7. For the reasons given hereinabove, I find that the preliminary objection lacks merit. The same is dismissed with costs to the plaintiff.
It is so ordered.
Dated, signed and delivered at Kitale on this 28th day of July, 2015.
E. OBAGA
JUDGE
28/7/2015
In the presence of M/s Arunga for Mr. Nyamu for Defendant and M/s Bett for Mr. Bundi for Plaintiff
Court Assistant – Winnie.
E. OBAGA
JUDGE
28/07/2015