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ELCStruck OutOriginating Summons dated 2nd January 2017 (Thika Environment and Land Court; number not stated in the judgment)· [2017] KEELC 335 (KLR)

Charles M. Waihanya & 2 others v Mary Wanjiku Njoroge & 3 others [2017] KEELC 335 (KLR)

Environment and Land Court of Kenya
8 December 2017
LGL. GACHERU
2,610 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiffs, suing as officials of the Damview Estate Kiamumbi Residents Association, filed an Originating Summons on 2nd January 2017 seeking a declaration that the 1st Defendant's construction of high-density flats on Kiambu Municipality/Kiamumbi (Block 5/2849) was unlawful and against public interest, together with a Notice of Motion seeking a temporary injunction restraining further construction. They alleged the development lacked approvals from the 2nd, 3rd and 4th Defendants, involved no environmental impact assessment, and defeated the legitimate expectation of residents to participate. The 1st Defendant, through her attorney Francis Njoroge Kabui, opposed the application as misconceived and an abuse of process, and contended the Plaintiffs were an amorphous 'Private Members Club' without her mandate. After considering written submissions, the court (L. Gacheru J) framed two issues: locus standi and entitlement to the injunction. On the first, it held the Plaintiffs, suing representatively, had neither specified the residents they represented nor filed the written authority mandated by Order 1 Rule 13 of the Civil Procedure Rules; the omission was fatal, the Preliminary Objection was upheld citing Mukisa Biscuits, and the entire suit was struck out as an abuse of process. On the second, the court answered hypothetically: applying Giella v Cassman Brown sequentially, no prima facie case was established since the 2nd, 3rd and 4th Defendants never confirmed that the 1st Defendant lacked approvals. The suit was struck out with costs to the 1st Defendant.

Key legal issues

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01

Locus standi of officials suing on behalf of a residents' association

Holding

The Plaintiffs had no locus standi because they neither specified the residents they represented nor filed written authority signed by those persons as required by Order 1 Rule 13 of the Civil Procedure Rules; the omission is fatal.

Reasoning

The Plaintiffs sued as officials of a registered association on behalf of unnamed residents of Damview Estate. The court found no annexture listing the residents or their signed mandate. Relying on Order 1 Rule 13(1) and (2) and representative-suit authorities (El Bussaidy; Law Society of Kenya; Joseph Kariuki), the court held that a party suing for others must obtain and file their authority, failing which the suit is an abuse of process.

p. 5
02

Whether the Applicants would have been entitled to an injunction had they had standing

Holding

No. The Applicants failed to establish a prima facie case with probability of success because the 2nd, 3rd and 4th Defendants, despite entering appearance, did not file responses confirming that the 1st Defendant lacked approvals.

Reasoning

Applying Giella v Cassman Brown sequentially as reinforced in the Afraha Educational Development case, the court found the Applicants produced no evidence from the approval-granting authorities that the construction lacked permission. Absent a prima facie case, the remaining limbs (irreparable injury, balance of convenience) need not be considered.

p. 5
03

Validity of the Preliminary Objection

Holding

The 1st Defendant's Preliminary Objection on locus standi was upheld as it was capable of disposing of the matter by reference to the pleadings alone.

Reasoning

Citing Mukisa Biscuits Manufacturing Ltd v West End Distributors Ltd, the court found the objection met the classic test: the absence of filed written authority could be determined without ascertaining facts from outside the pleadings, making it a proper preliminary point that disposed of the suit.

p. 5

Legal principles established

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  • Where persons sue in a representative capacity on behalf of a residents' association or group, written authority signed by the parties giving it must be filed in the case; failure is fatal to the suit
  • The three Giella v Cassman Brown conditions for an interlocutory injunction are sequential; failure at the first stage (prima facie case) ends the inquiry

Court orders

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  1. 1.The 1st Defendant's Preliminary Objection on locus standi is upheld
  2. 2.The whole suit is struck out for being an abuse of the court process as the Plaintiffs lacked locus standi
  3. 3.Costs of the suit to the 1st Defendant

Authorities

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Legislation

  • Physical Planning ActSection 30(1); Section 3
  • Civil Procedure RulesOrder 1 Rule 13(1) and (2); Order 1 Rule 8(1)
  • Societies Act

Cases cited (7)

  • Wainaina Kinyanjui & 2 others v Andrew Nganga
    (2013) eKLR
  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • El Bussaidy v Commissioner of Lands & Others
    (2002) 1 KLR 508
  • Law Society of Kenya v Commissioner of Lands & Others
    Nakuru HCCC No.464 of 2000 (2007) KLR 706
  • Joseph Kariuki & Others v Juma Aweyo
    Kisumu HCCC No.124 of 2003 (2003) KLR
  • Mukisa Biscuits Manufacturing Ltd v West End Distributors Ltd
    (1969) EA 697
  • The Attorney General v Kenya Commercial Bank Ltd, Afraha Educational Development Co. Ltd & Others
    Nakuru CCC No.260 of 2004
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land use and development within Kiambu (statutory basis not expressly stated in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Charles M. Waihanya & 2 others v Mary Wanjiku Njoroge & 3 others [2017] KEELC 335 (KLR)", Case Analysis (2017). Originating Summons dated 2nd January 2017 (Thika Environment and Land Court; number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/335/eng@2017-12-08

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