Yako Supermarket (K) Ltd & another v National Land Commission & 4 others [2016] KEELC 416 (KLR)
The bottom line
#A Kenyan court struck out a claim against a school committee chairman wrongly named as a party, because that person does not legally exist as an entity.
What this practically means
#Executive summary
#Key legal issues
#Whether the 4th Respondent, described as 'Chairman School Committee Kakamega Primary School', is a legal entity capable of being a party
The description does not refer to the Board of Management under Section 55 of the Basic Education Act 2014 and the party so described does not legally exist
A primary school is managed under a Board of Management as provided by Section 55 of the Basic Education Act 2014. The description used in the petition and notice of motion does not name any person capable of being a member or official of the Board, and does not disclose the identity of the person holding the position of Chairman for purposes of service and participation in proceedings. The Petitioner's counsel did not dispute this position.
Whether the question of legal capacity is a point of law suitable for a preliminary objection
Existence of a party is a matter of law, not a technicality, and should be decided at the earliest opportunity
The court held that the existence or otherwise of a party cannot be dismissed as a technicality, since no orders, positive or negative, can be made for or against a non-existent party. It distinguished Mukisa Biscuits to hold that a preliminary objection need only dispose of the suit between the objecting and opposing parties, not all parties to the suit.
Consequence of continuing the suit against a non-existent party
Continuing the petition and notice of motion against the 4th Respondent amounts to an abuse of the court's process; the suit against the 4th Respondent is struck out
Relying on persuasive authority including Evans Otiendeh Omolo, the court found that allowing a suit to continue against non-existent parties is an abuse of process. However, because the objection was raised by only one Respondent, it terminated the suit only against the 4th Respondent, leaving the petition alive against the other four Respondents.
Legal principles established
#- A non-existent party without capacity to sue or be sued in its own name cannot have a suit instituted or continued against it in its name
- The existence or otherwise of a party to a suit is a matter of law properly raised by preliminary objection
- A preliminary objection need not dispose of the suit against all parties; it disposes of the suit between the objecting party and the party opposing it
Court orders
#- 1.The petition and notice of motion filed by the Petitioner as against the 4th Respondent is hereby struck out
- 2.The petitioner will pay the 4th Respondent costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (petition and notice of motion); preliminary objection under civil procedure practice
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yako Supermarket (K) Ltd & another v National Land Commission & 4 others [2016] KEELC 416 (KLR)", Case Analysis (2016). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/416/eng@2016-10-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.