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ELCDismissedNot stated in judgment (suit commenced by plaint filed 18th August, 2005)· [2018] KEELC 1367 (KLR)

Ahmed Dolal & 9 others (suing on their behalf and on behalf of 27 Members of Likoley Farmers) v Kengen & another [2018] KEELC 1367 (KLR)

Environment and Land Court
17 October 2018
ECE. C. Cherono
1,769 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that missing a technical notice step does not kill a group lawsuit, allowing farmers' pollution claim to proceed.

What this practically means

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Executive summary

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The Plaintiffs, officials of Likoley Farmers Group, sued in 2005 in their own behalf and on behalf of 27 others, seeking general damages and an injunction over spillage of harmful substances from the Defendants' premises onto their farmlands. After leave to amend the plaint was granted, the 1st Defendant filed a Notice of Preliminary Objection dated 19th June, 2018 on three grounds: that the Plaintiffs failed to seek and issue the notice contemplated under Order 1 Rule 8(2) CPR 2010; that the court lacked jurisdiction over the Amended Plaint for that non-compliance; and that the Amended Plaint was ex-facie incompetent and fatally defective. By consent, the objection was disposed of by written submissions. The 1st Defendant argued the suit was a class suit instituted without the knowledge and consent of affected parties, citing Yiapas Ole Seese, Rose Florence Wanjiru, Utoda Ltd and Adero Adero. The Plaintiffs countered that the 2005 rules differed from the 2010 rules, that group members knew of and consented to the suit, and that non-compliance with the notice requirement was not fatal, citing Rees v Davies and Article 159(2)(d). The court held that the Order 1 Rule 8 notice is not mandatory and its absence cannot render a suit fatally defective; that jurisdiction was not denied in the defence and non-compliance with the rule did not affect it; and that the amended plaint, effected with unopposed leave, could not be challenged. The preliminary objection was dismissed with costs in the cause.

Key legal issues

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01

Whether the representative suit was incompetent for failure to give notice under Order 1 Rule 8(2) CPR 2010

Holding

The notice requirement is procedural, not mandatory, and non-compliance does not render the suit fatally defective; the practice of filing a list of consents is customary but the rule itself prescribes court-directed notice after institution.

Reasoning

The court read Order 1 Rule 8(1)-(3) literally: the rule itself contemplates the court directing notice after the suit is instituted, not pre-institution consent. Relying on Yiapas Ole Seese and Rees v Davies, the court held the purpose of the rule is to include all persons with a similar unlitigated cause and obviate multiplicity of suits, and that the requirement should be applied flexibly in aid of substantive justice, per Article 159(2)(d).

p. 3
02

Whether the court lacks jurisdiction over the Amended Plaint for non-compliance with Order 1 Rule 8(2)

Holding

The jurisdiction limb fails because the 1st Defendant did not deny the court's jurisdiction in the defence and did not demonstrate how non-compliance with Order 1 Rule 8 affects jurisdiction.

Reasoning

The court held that a party is bound by its pleadings; since the statement of defence did not contest jurisdiction, and no causal link between the notice requirement and jurisdiction was shown, the jurisdictional ground was superfluous. Procedural non-compliance with a rule on notice to class members goes to procedure, not to the court's competence to adjudicate the dispute.

p. 3
03

Whether the Amended Plaint of 10th May, 2011 was ex-facie incompetent and fatally defective

Holding

The amended plaint was valid; it was amended pursuant to leave of the court granted on an unopposed application, and the 1st Defendant could not challenge it thereafter.

Reasoning

The court found the amendment properly effected with leave, having been sought on an application served on the 1st Defendant who did not oppose it. A party who acquiesces in an amendment cannot later attack the amended plaint's competence. Accordingly, the third ground of the preliminary objection also failed.

p. 3

Legal principles established

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  • The notice required under Order 1 Rule 8(2) CPR is not a mandatory requirement; non-compliance does not render a representative suit fatally defective
  • Representative proceedings under Order 1 Rule 8 should be treated as a flexible tool of convenience in the administration of justice, not a rigid matter of principle
  • A party is bound by its pleadings; jurisdiction cannot be challenged in a preliminary objection where it was not denied in the statement of defence
  • A party served with an application for amendment which it did not oppose cannot later challenge the competence of the amended plaint

Court orders

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  1. 1.The Notice of Preliminary Objection dated 19th June, 2018 is dismissed
  2. 2.Costs of the preliminary objection to be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 8(1), (2) and (3)
  • Constitution of Kenya, 2010Article 159(2)(d)

Cases cited (5)

  • Yiapas Ole Seese & 4 others –Vs- Sakita Ole Narok & 2 Others
    (2008) eKLR
  • Rose Florence Wanjiru –Vs- Standard Chartered Bank of Kenya Ltd & 2 Others
    (2014) eKLR
  • Ibrahim Buwembo, Emmanuel Sserunjogi, Zubairi Muwanika for and on behalf of 800 others –Vs- Utoda Ltd
    HCCC No. 664 of 2003
  • Adero Adero & Another –Vs- Ulinzi Sacco Society Ltd
    (2002) eKLR
  • John Rees & Others Martin & Another –Vs- Davies & Others
    (1969) 2 All ER 283 (also referred to as (1969) 1 All ER 283)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court in a claim for damages and injunction concerning spillage of harmful substances onto the Plaintiffs' farmlands

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Ahmed Dolal & 9 others (suing on their behalf and on behalf of 27 Members of Likoley Farmers) v Kengen & another [2018] KEELC 1367 (KLR)", Case Analysis (2018). Not stated in judgment (suit commenced by plaint filed 18th August, 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1367/eng@2018-10-17

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