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ELCPartially AllowedELC suit (amended plaint dated 25th February 2014); rulings on applications dated 18th June 2014 and 16th July 2014· [2015] KEELC 700 (KLR)

Damani Drums Limited & another v George Kimani Mbugua & 3 others [2015] KEELC 700 (KLR)

Environment and Land Court
29 January 2015
JMJ. M. MUTUNGI
2,898 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled an unregistered residents' group cannot be sued, and a company suing without filing its board resolution upfront is not fatal to its case.

What this practically means

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Executive summary

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This Environment and Land Court ruling by J. M. Mutungi J disposed of two interlocutory applications in an ownership dispute over L.R. Nos. 9024/147 and 9024/148. The 1st–3rd Defendants, described as officials of Airportview Neighbours Group, sought to be struck out of the proceedings. The court found that Airportview Neighbours Group is an unregistered, amorphous grouping without legal status that cannot sue or be sued, and that the persons with a genuine interest in the properties had already been enjoined as the 4th Defendant. It struck out the names of the 1st–3rd Defendants and the Group, directing the suit to proceed against the 4th Defendant as sole defendant, but denied them costs because their conduct in earlier proceedings had misled the plaintiffs; each party was ordered to bear its own costs on that application. The 4th Defendant's application sought dismissal of the plaintiffs' suit on the ground that the verifying affidavit sworn by Bharat Patel was defective for lack of authority under the corporate plaintiffs' seal, and judgment on its counterclaim for adverse possession. The court held that while Order 4 Rule 1(4) requires authorization under seal, it does not require the authority to be filed with the plaint; a board resolution may be filed at any time before the suit is fixed for hearing. The deponent had deponed to authority and later exhibited resolutions, so the court declined to strike out the suit. Judgment on the counterclaim was refused because triable issues on adverse possession require a full trial. The application was dismissed with costs to the plaintiffs.

Key legal issues

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01

Standing of the 1st–3rd Defendants and Airportview Neighbours Group

Holding

Their names struck out as parties.

Reasoning

The court found no evidence that Airportview Neighbours Group is a registered association; without registration it has no certificate or registered officials and no legal standing. Persons with a real interest in the suit properties had already been enjoined as the 4th Defendant. Suing the named individuals merely as 'officials' of an unregistered group was therefore unsustainable.

p. 2
02

Effect of failure to file corporate authority with verifying affidavit

Holding

Not fatal; suit not struck out.

Reasoning

Order 4 Rule 1(4) requires that the verifying affidavit be sworn by an officer authorized under seal, but does not require the authority itself to be filed with the plaint. The deponent deponed he was duly authorized and later exhibited the board resolutions. The court, exercising its discretion under Order 4 Rule 1(6), declined the draconian remedy of striking out the suit in the absence of prejudice.

p. 5
03

4th Defendant's application for judgment on counterclaim

Holding

Dismissed.

Reasoning

The plea for judgment was predicated on striking out the plaint, which the court declined. Even if the plaint had been struck out, the plaintiffs would be entitled to defend the counterclaim. The plaintiffs are registered owners and the 4th Defendants claim title by adverse possession; triable issues exist requiring a full hearing.

p. 5

Legal principles established

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  • An unregistered group lacks legal status and can neither sue nor be sued.
  • Where the plaintiff is a corporation, the verifying affidavit must be sworn by an officer duly authorized under seal, but the authority need not be filed with the plaint; a board resolution may be filed anytime before the suit is fixed for hearing.

Court orders

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  1. 1.The names of the 1st, 2nd and 3rd Defendants as well as Airportview Neighbours Group struck out as parties to the suit
  2. 2.The suit to proceed against the 4th Defendants as the sole Defendants
  3. 3.No costs awarded on the 1st–3rd Defendants' application; each party to bear their own costs in respect thereof
  4. 4.The 4th Defendant's application dated 16th July 2014 dismissed with costs to the plaintiffs

Authorities

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Legislation

  • Civil Procedure RulesOrder 4 Rule 1(2), (3), (4), (6)
  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of KenyaArticle 159 2(d)

Cases cited (6)

  • Vista Holdings International Limited –vs- Span Image Ltd
    HCCC NO. 464 of 2011
  • Assheik Transporters Ltd & Another –vs- Barclays Bank of Kenya Ltd and 3 others
    HCCC NO. 335 of 2011
  • Shiaware Limited & another –vs- Planesi Gino
    (2012) eKLR
  • Samuel Katana Nzungu & 102 others –vs- Salim Abdalla Bakshwein & another
    (2013) eKLR
  • Insignia Limited –vs- Zadok & 3 others
    (2012) eKLR
  • Republic –vs- Registrar General and 13 others
    Misc. Application NO. 67 of 2005 (2005) eKLR
Jurisdiction invoked
Original civil jurisdiction over land suit under the Civil Procedure Act and Civil Procedure Rules (Order 4 Rule 1)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Damani Drums Limited & another v George Kimani Mbugua & 3 others [2015] KEELC 700 (KLR)", Case Analysis (2015). ELC suit (amended plaint dated 25th February 2014); rulings on applications dated 18th June 2014 and 16th July 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/700/eng@2015-01-29

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