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Court of AppealPartially AllowedCivil Appeal No. 105 of 2016· [2017] KECA 242 (KLR)

Anderson Mole Munyaya & 3 others v Morris Sulubu Hare [2017] [2017] KECA 242 (KLR)

Court of Appeal
5 October 2017
AVAlnashir VisramWKW. KaranjaMartha Karambu KoomeM. K. Koome
1,691 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ruled that unregistered community groups can only be sued through their officials, and struck the water project itself out of the case.

What this practically means

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Executive summary

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This interlocutory appeal arose from a ruling of the Environment and Land Court at Malindi (Angote, J.) dismissing an application to strike out a suit brought by Morris Sulubu Hare, the registered owner of Ngomeni Squatter Settlement Scheme/1295, against three officials of Mjanaheri Self Help Water Project and the project itself. The suit sought a permanent injunction and damages for trespass after the respondent terminated an agreement allowing the project to manage wells on the land. The appellants contended that the officials were sued in a representative capacity without the leave required by Order 1 Rule 8 of the Civil Procedure Rules, and that any dispute over a well's location was a boundary dispute ousting the ELC's jurisdiction under section 18 of the Land Registration Act. The Court of Appeal held that no such leave was necessary: the 4th appellant is an unincorporated society registered under the Societies Act, lacking capacity to sue or be sued in its own name, and it sues and is sued through its office holders, who were properly before the court. However, applying Order 1 Rule 9 and P C Desai v Navin M Patel, the court struck out the 4th appellant as an improper party. On jurisdiction, the court found, in agreement with the learned Judge, that there was no boundary dispute; the parties' respective surveyors had confirmed under a consent order that the well lay on the suit land, so section 18 did not divest the ELC of jurisdiction. The appeal was accordingly dismissed with costs, save that the 4th appellant was struck out as a party.

Key legal issues

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01

Whether leave under Order 1 Rule 8 of the Civil Procedure Rules was required before suing the 1st, 2nd and 3rd appellants as officials of an unincorporated society

Holding

No leave was required because the officials were officers of the 4th appellant, which as an unincorporated body can only sue and be sued through its office holders.

Reasoning

The court observed that the 4th appellant is registered under the Societies Act and is thus an unincorporated body lacking legal capacity. Such a body sues and is sued through its officers, and the 1st to 3rd appellants were admittedly its officers. The representative-suit leave regime under Order 1 Rule 8 was therefore not engaged, and the ELC correctly declined to strike out the suit on that ground.

p. 3
02

Whether the 4th appellant was a proper party to the suit

Holding

The 4th appellant was not a proper party and was struck out, invoking Order 1 Rule 9 and the principle that wrong parties should not remain on record when the correct party is known.

Reasoning

Following P C Desai v Navin M Patel, the court held that the power to strike out a pleading or party is not to be lightly exercised, but where wrong parties are sued and the correct party is known, no purpose is served by keeping the wrong party on record. The unincorporated 4th appellant could not be a proper party in its own name, so it was struck out.

p. 3
03

Whether the dispute concerning a well was a boundary dispute ousting the ELC's jurisdiction under section 18 of the Land Registration Act

Holding

There was no boundary dispute; the parties' surveyors had confirmed the well was on the suit land, so section 18 did not divest the ELC of jurisdiction.

Reasoning

The court reproduced section 18(2) of the Land Registration Act, which bars actions relating to boundary disputes of registered land unless boundaries are first determined under that section. However, on the facts, a consent order had led both parties' surveyors to confirm the well lay on the respondent's land. The court agreed with the learned Judge that no boundary dispute existed and the ELC had jurisdiction.

p. 3

Legal principles established

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  • An unincorporated society registered under the Societies Act lacks legal capacity to sue or be sued in its own name and can only sue or be sued through its office holders.
  • Where an unincorporated body is improperly joined as a party but the wrong party is clearly sued, the court should strike it out rather than allow it to remain on record.
  • Section 18(2) of the Land Registration Act bars courts from entertaining boundary disputes over registered land unless the boundaries have first been determined in accordance with that section; it does not apply where no boundary dispute exists.

Court orders

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  1. 1.The 4th appellant, Mjanaheri Self Help Water Project, is struck out as a party to the suit
  2. 2.The appeal is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 Rule 8
  • Civil Procedure RulesOrder 1 Rule 9
  • Land Registration Actsection 18
  • Land Registration Actsection 18(2)
  • Societies Actsection 2

Cases cited (4)

  • J. J. Campos & L. D'cruz vs ACL De Souza & 5 Others
    [1933] KLR 86
  • Goodwill & Trust Investment Ltd. and Another vs Witt & Bush Ltd.
    SC 266/2005
  • Grace Mwenda Muthuri vs The Trustees of Agricultural Society of Kenya
    Civil Appeal No. 250 of 2015 (unreported)
  • P C Desai vs Navin M Patel t/a Sandpipers Constructions & Civil Engineering Services & 13 Others
    [2001] eKLR
On appeal from
Environment and Land Court at Malindi
ELC No. 136 of 2015
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over interlocutory appeals from the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Anderson Mole Munyaya & 3 others v Morris Sulubu Hare [2017] [2017] KECA 242 (KLR)", Case Analysis (2017). Civil Appeal No. 105 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/242/eng@2017-10-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.