Tara Singh Dogra Suing through Manmohan Singh Dogra v Elesh Chandrakant Gheewala (Kenyan) & 4 others [2018] KEELC 2502 (KLR)

The plaintiff's own pleadings admitted the company closed down 18-20 years ago and had not filed returns. A company is a juristic person separate from its directors and shareholders; the veil was not lifted and no derivative action with leave was sought. The belated claim in grounds of opposition that the plaintiff sued as administrator of a deceased person was unpleaded and further damaged capacity. With no plaintiff, there can be no suit.

The court restated the rule that only the company may enforce wrongs done to it, subject to exceptions (illegality/ultra vires, irregular resolutions, abridgement of individual member rights, fraud on the minority). The plaintiff claiming adverse possession against the defendants, including the Land Registrar and Attorney General, fell within none of these exceptions, and no leave for a derivative action was sought.

The 4th and 5th defendants argued that the subject matter was leasehold land with the government as head lessor, so adverse possession could not run against it under section 41. The court rejected this, holding that the lease merely gives terms and conditions of use and the land is not public land, as evidenced by the official search showing title in the 3rd defendant's name.

The plaintiff relied on Articles 22 and 258 to argue every person may institute suit. The court held Article 22 governs enforcement of the Bill of Rights and requires petition proceedings under rules made by the Chief Justice; the plaintiff claimed no violation of any right, only adverse possession, so the constitutional route was unavailable.

Counsel for the plaintiff invoked Article 159 urging substantive justice over technicalities. The court held the objection concerned the very existence of a plaintiff, a substantive point of law, so Article 159 could not save the suit; where there is no plaintiff, the suit must be struck out.