Kosgei Toppias & 4 others v Bomet County Govrnement & 1 other
The bottom line
#Kenya's Court of Appeal confirmed that group employment lawsuits must strictly follow authorisation rules, but the officers can still file a fresh, properly prepared case.
What this practically means
#Executive summary
#Key legal issues
#Whether Rule 9(2) and (3) requirements are mandatory
They are mandatory and substantive; 'shall' imports a command, and non-compliance goes to the competence of the representative suit
The Court noted the compulsory meaning of 'shall' in both sub-rules and held the requirements serve a salutary purpose: giving the respondent notice of the extent of liability and enabling the court to verify consent of those represented. The appellants had a wide proviso under Rule 9(2) allowing the court to dispense with the letter of authority, which they never invoked even during the preliminary objection, and never sought leave to introduce the schedule out of time.
Whether striking out the suit offended Article 159(2)(d)
It did not; a party in default who never invoked the available proviso or sought leave cannot invoke Article 159(2)(d)
The Court, following the Supreme Court in Karan vs. Ochieng and Zachariah Okoth Obado, held that 'undue regard' qualifies 'procedural technicalities'; not all procedural stipulations are to be disregarded. The deficiencies here (late, unregularised schedule of 238 persons, consent signed by only 6 claimants without required particulars) were of the appellants' own making and curable through mechanisms they ignored.
Whether the Court could determine lawfulness of the termination
No; that issue belongs to the merits of the claim, not the ruling appealed from
The suit was struck out on a preliminary objection for non-compliance with Rule 9(2) and (3); the termination issue was never determined below and could only be canvassed in a final judgment. The Court declined to entertain a completely new ground not urged and determined in the impugned ruling.
Legal principles established
#- Article 159(2)(d) does not excuse litigants who fail, through their own negligence or lack of diligence, to comply with clear rules of procedure, especially where a self-help mechanism such as the proviso to Rule 9(2) was available and never invoked.
- The requirements of Rule 9(2) and (3) of the ELRC (Procedure) Rules, 2016 - a letter of authority signed by all claimants and an accompanying schedule of claimants' names, addresses, descriptions and particulars of claims - are mandatory and substantive, going to the competence of a representative suit, and are not 'technicalities' disregarded under Article 159(2)(d).
- The word 'shall' in a statutory provision imports a command or mandate and denotes an obligation.
- A litigant relying on Article 159(2)(d) must show that in the particular case it was not desirable to pay undue regard to the relevant technicality; the provision applies on a case-by-case basis and is not a panacea for all procedural shortfalls.
- A distinction exists between a suit that is dismissed (with finality) and one struck out on a technicality, the latter permitting the aggrieved party to file afresh before the same court.
Court orders
#- 1.The appeal is dismissed
- 2.Costs of the appeal awarded to the respondents
- On appeal from
- Employment and Labour Relations Court, Kericho
- null
- Jurisdiction invoked
- First appellate jurisdiction over an appeal from the Employment and Labour Relations Court (memorandum of appeal dated 16th February 2018); no specific constitutional provision cited for jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Iномва v Nairobi City Water & Sewerage Company Limited (Environment and Land Appeal E105 of 2025) [2026] KEELC 2839 (KLR)[2026] KEELC 2839 (KLR)14 May 2026
- County Government of Bomet v Kenya County Government Workers Union & 1 other[2025] KECA 1311 (KLR)18 Jul 2025followed
Cite this brief
#Cite this brief
Caselaw, "Kosgei Toppias & 4 others v Bomet County Govrnement & 1 other", Case Analysis (2025). Civil Appeal (Eldoret). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/841/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.