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ELCDismissedNakuru HCCC (ELC) — original plaint filed 2 July 2004 (Further Further Amended Plaint filed 2 February 2015)· [2016] KEELC 656 (KLR)

Daniel K. Yego & 3 others v Paulina Nekesa Kode [2016] KEELC 656 (KLR)

Environment and Land Court of Kenya
14 July 2016
MSMunyao Sila
6,959 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~28 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a land suit because an unregistered self-help group and an unauthorised company had no legal right to sue.

What this practically means

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Executive summary

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The first three plaintiffs, officials of the Ainoptich Borehole Water Project, sued the defendant alleging she fraudulently acquired and subdivided land parcel Miti Mingi/Mbaruk Block 3/4123 (subdivided into 5056 and 5057) on the strength of a Land Disputes Tribunal award later nullified by the High Court. They sought cancellation of the defendant's titles, restoration of the original parcel to be held in trust for the water project, and eviction. Kalenjin Enterprises Limited was joined as 4th plaintiff, alleged to have allocated the land. The defendant claimed she was allocated the land by the company in satisfaction of her shares. The defendant's counsel raised the question of the plaintiffs' capacity, which the court took up suo motu. The court held that under Sections 2, 4, 9 and 10 of the Societies Act, any association of ten or more persons must be registered or exempted, and that the Self Help Group, with over 100 members and registered only by the Ministry of Gender, Children and Social Development, is an unlawful society, since no statute recognises Self Help Groups. It followed the decisions in Dennis Ololoigero and Nakuru County Maasai Elders, holding it against public policy to entertain suits on behalf of unlawful entities. The plaintiffs had not sued individually or as representatives under Order 1 Rules 8 and 13, so their suit was struck out. The 4th plaintiff's director testified the company never authorised the suit, so no suit existed by the company. The court dismissed the suit with costs, borne by the first three plaintiffs jointly and/or severally, and expressly made no determination on the merits of ownership.

Key legal issues

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01

Whether the suit is maintainable by the first three plaintiffs suing on behalf of Ainoptich Borehole Water Project, a Self Help Group

Holding

The suit is not maintainable. The Self Help Group has more than 100 members and, being unregistered under the Societies Act, is an unlawful society; entertaining a suit on its behalf would perpetuate an illegality. The three officials are not proper parties.

Reasoning

Sections 2, 4, 9 and 10 of the Societies Act require any association of ten or more persons to be registered or exempted. The Act does not contemplate Self Help Groups, and no other statute recognising them exists; the court noted the Self-Help Associations Bill, 2015 as evidence of this lacuna. The plaintiffs did not sue in their individual capacity nor as representative plaintiffs under Order 1 Rules 8 or 13 of the Civil Procedure Rules, and produced no constitution or evidence of authority.

p. 9
02

Whether Kalenjin Enterprises Limited is properly before the court as 4th plaintiff

Holding

No. Although it has capacity as a limited liability company, its own director testified that the company never authorised the filing of the suit, so no suit exists by the company.

Reasoning

PW-2, a director, testified that no resolution was passed to enjoin the company and that he came to court as a witness of the Water Project, not the company. The court distinguished Fubeco China Fushun v Naiposha, where a director had commenced suit and the company had not itself challenged his authority; here the company itself disowned the suit, leaving no plaintiff with capacity.

p. 10
03

The remaining issues on membership, allocation, fraud and entitlement to prayers

Holding

Not determined. Having found no properly constituted suit, the court declined to make findings on the merits that might prejudice any future suit.

Reasoning

The court reasoned that making determinations on the merits without a proper plaintiff would be unwise and could prejudice future litigation between the parties over parcel 4123 and its subdivisions 5056 and 5057. All substantive issues were left open.

p. 11

Legal principles established

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  • Any group of ten or more persons that is not registered under the Societies Act or another recognised statute is an unlawful society, and no legal personality can be given to such a group.
  • It is against public policy for courts to entertain proceedings filed on behalf of an entity declared unlawful by law, unless the suit challenges the declaration of illegality itself.
  • Where no suit has been authorised by a company, there is no suit by that company before the court.

Court orders

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  1. 1.The suit of the first three plaintiffs is struck out as they are not proper parties.
  2. 2.The 4th plaintiff (Kalenjin Enterprises Ltd) is not considered a plaintiff in the case, no suit having been authorised by it.
  3. 3.The suit is dismissed with costs.
  4. 4.The first three plaintiffs shall bear the costs of this suit jointly and/or severally.

Authorities

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Legislation

  • Societies ActSections 2, 4, 5, 6, 9, 10
  • Evidence ActSections 112, 116
  • Civil Procedure Rules, 2010Order 1 Rule 8, Order 1 Rule 13
  • Constitution of Kenya, 2010Articles 22, 260
  • The Self-Help Associations Bill, 2015
  • Companies Actreferred to in definition of 'society' (Cap 486)
  • Trade Unions Actreferred to in definition of 'society' (Cap 233)
  • Education Actreferred to in definition of 'society' (Cap 211)
  • Building Societies Actreferred to in definition of 'society' (Cap 489)
  • Banking Actreferred to in definition of 'society' (Cap 488)

Cases cited (10)

  • Munyua Maina vs Hiram Gathiha Maina
    (2013) eKLR
  • Epaphrus Muturi Kigoro vs William Mukui Nyaga
    (2015) eKLR
  • Mutete Ndonye vs Muli Munyao & 4 Others
    (2012) eKLR
  • Macharia Mwangi Maina & 87 Others vs Davidson Mwangi Kagiri
    Civil Appeal No. 6, 26 & 27 of 2011
  • Dennis Ololoigero & 2 Others vs Art of Ventures Ltd & 2 Others
    Nairobi HCCC No. 158 of 2005 (2006) eKLR (also referred to as Civil Case No. 1358 of 2005)
  • Nakuru County Maasai Elders Community Based Organization & 7 Others vs Maenga Kisotu & Others
    Nakuru HCCC No. 106 of 2013
  • Kipsiwo Community Self Help Group vs Attorney General & 6 Others
    (2013) eKLR
  • Kirinyaga Bar Owners Organization vs County Secretary of Kirinyaga County Government & 6 Others
    (2014) eKLR
  • Football Kenya Federation vs Kenyan Premier League Limited & 4 Others
    (2015) eKLR
  • Fubeco China Fushun vs Naiposha Company Ltd & 11 Others
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Daniel K. Yego & 3 others v Paulina Nekesa Kode [2016] KEELC 656 (KLR)", Case Analysis (2016). Nakuru HCCC (ELC) — original plaint filed 2 July 2004 (Further Further Amended Plaint filed 2 February 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/656/eng@2016-07-14

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