Mtai & 9 others v Anglican Church of Kenya & 2 others (Appeal E008 of 2024) [2025] KEELRC 1988 (KLR)
The bottom line
#Kenya's Employment Court confirmed that suing the wrong-named employer or skipping unclear internal church processes cannot get an employment case thrown out before a full hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial magistrate correctly applied the law on Preliminary Objections, i.e. whether the preliminary objection raised pure points of law
- 2.Whether the suit was fatally defective for misjoinder of the 3rd Respondent
- 3.Whether the suit was premature for non-exhaustion of internal dispute resolution mechanisms
Key legal issues
#Whether misjoinder can be raised in a preliminary objection
No; misjoinder or non-joinder cannot defeat a suit and can be cured by amendment, so this ground of the preliminary objection was not merited.
The court relied on Order 1 Rules 9 and 10 of the Civil Procedure Rules, 2010, which provide that no suit shall be defeated by misjoinder or non-joinder and permit substitution or addition of parties. It also relied on William Kiprono Towett v Farmland Aviation Ltd and Consolata Kihara v Director Kenya Trypanosomiasis Research Institute, holding that joinder issues are curable and not significant absent miscarriage of justice. Further, under the Employment Act and ELRC Act, the definition of employer includes an agent and the person who issued the letter of appointment.
Whether the suit was premature for non-exhaustion of internal dispute resolution mechanisms
No; the Respondents failed to identify the available internal mechanisms not exhausted and did not rebut the Appellants' claim that no bishop, synod or administrative offices existed for Kapenguria Diocese; the objection required evidence and was not a pure point of law.
The court examined Canon XXI of the Anglican Church of Kenya Constitution, which provides for appeals to the Provincial Tribunal from judgments of the Diocesan Tribunal or the Bishop. Since the Respondents did not identify which internal mechanisms the Appellants failed to resort to, and did not rebut the assertion that no such structures existed for the new Kapenguria Diocese, the doctrine of exhaustion was not established. It was a matter requiring pleading and proof by evidence, not a pure point of law.
The proper character of a preliminary objection
A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded are correct; it cannot be raised where facts must be ascertained.
The court adopted the classic statement in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696, which defines a preliminary objection as in the nature of a demurrer raising a pure point of law, and which cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion. Applying this, the exhaustion ground, requiring evidence, failed the threshold.
Legal principles established
#- Misjoinder or non-joinder of parties cannot defeat a suit.
- An employee may sue the person who on the face of the contract is the employer, as defined in employment legislation, including an agent or the person who issued the letter of appointment.
- Exhaustion of internal remedies must be proved by evidence; a party relying on it must identify the specific internal mechanisms not exhausted.
Court orders
#- 1.Appeal allowed
- 2.Trial court's decision dismissing the Appellants' suit set aside
- 3.Substituted order dismissing the Preliminary Objection dated 27th June 2024
- 4.Case remitted back to the trial court for hearing and determination before any court other than Hon. S.K. Mutai
- 5.Respondents to bear the Appellants' costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial court (magistrates' court, ELRC jurisdiction)
- Not stated
- Jurisdiction invoked
- First appeal from the trial court pursuant to the court's appellate jurisdiction (Memorandum of Appeal dated 28th October 2024)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, I allow the appeal, set aside the trial court's decision dismissing the Appellants' suit and substitute it with an order dismissing the Preliminary objection dated 27th June 2024. The case is thus remitted back to the trial court for hearing and determination before any court other than Hon. S.K Mutai.
Most critically Order 1 Rule 9 of the Civil Procedure Rules (2010) makes it abundantly clear that misjoinder or non-joinder of parties cannot be a ground to defeat a suit.
A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct.
An employee may not know that there is another person behind the employer named in the contract of employment. He is allowed to sue the person who on the face of the contract is the "employer" as defined in the relevant legislation.
The Respondents shall bear the Appellants costs of this appeal.
Issues in the judgment
#The judgment gives conflicting dates for the preliminary objection: paragraph 1 refers to a Preliminary Objection dated 26th June 2024 while the analysis refers to the notice of preliminary objection dated 27th June 2024.
The opening of the judgment is incomplete: paragraphs 1 and 2 begin abruptly and the names of the parties and the case number are not stated in the record.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Ngumba v Magu & another (Environment and Land Case E060 of 2025) [2026] KEELC 4915 (KLR)[2026] KEELC 4915 (KLR)30 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Mtai & 9 others v Anglican Church of Kenya & 2 others (Appeal E008 of 2024) [2025] KEELRC 1988 (KLR)", Case Analysis (2025). Not stated in the excerpt provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/1988/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.