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ELCAllowedNotice of Motion dated 5th June 2017 (in an Originating Summons suit)· [2018] KEELC 2816 (KLR)

Grace Wanjiru Ng’anga & 2 others v Elias Ngugi Ng’ang’a & another [2018] KEELC 2816 (KLR)

Environment and Land Court
29 June 2018
DOD. O. Ohungo
933 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed group office bearers to sue trustees on behalf of all 85 land owners, with notice given by meeting and newspaper publication.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (D. O. Ohungo, J) determined a Notice of Motion dated 5th June 2017 in proceedings commenced by Originating Summons under Sections 42 and 57 of the Trustee Act. The plaintiffs, office bearers of Naivasha Uiguano Group, a self-help group of 85 women formed in 1975 which purchased land parcel Gilgil/Gilgil Block 1/9565 (Kekopey), sought a representative order allowing them to prosecute the suit for the beneficial owners, approval of notice of the suit to interested individuals, and directions for disposal by affidavit evidence. The underlying suit sought revocation of the defendants' appointment as trustees, appointment of the current office bearers in their place, and an order directing the Naivasha Land Registrar to register the new trustees. Counsel noted the 1st defendant died on 17th August 2016 and asked that the claim against him be marked as abated. Though served, the remaining defendants filed no replying affidavit. Relying on Order 1 rule 8 of the Civil Procedure Rules, the court was satisfied that numerous persons had the same interest and allowed the plaintiffs to prosecute the suit representatively. It ordered the notice of the suit to be read at a general meeting of the group and published in the Daily Nation or Standard newspapers, with costs of the application in the cause.

Key legal issues

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01

Whether a representative order should issue allowing the plaintiffs to sue for all beneficial owners

Holding

The representative order issued because numerous persons share the same interest in the suit property

Reasoning

The court examined the Originating Summons brought under Sections 42 and 57 of the Trustee Act, in which the plaintiffs, office bearers of Naivasha Uiguano Group, sought revocation of the defendants' appointment as trustees and registration of the new trustees. The plaintiffs deposed that 85 persons bought the suit property in 1975, that many have died or left the area, and that 76 attended a 2015 meeting resolving to change trustees. Applying Order 1 rule 8, the court found numerous persons with the same interest and allowed representative prosecution, with notice by meeting and newspaper publication.

p. 2

Legal principles established

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  • Where numerous persons have the same interest in proceedings, the proceedings may be commenced and continued by one or more of them representing all, under Order 1 rule 8 of the Civil Procedure Rules

Court orders

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  1. 1.The plaintiffs are allowed to prosecute the suit on behalf of all persons beneficially interested in parcel Gilgil/Gilgil Block 1/9565 (Kekopey)
  2. 2.The notice of institution of the suit annexed to the application be read at a general meeting of Naivasha Uiguano Group
  3. 3.The aforesaid notice also be published in either the Daily Nation or Standard Newspapers
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Trustee ActSections 42 and 57
  • Civil Procedure RulesOrder 1 rule 8

Cases cited (1)

  • Daniel K. Yego & 3 others –vs- Paulina Nekesa Kode
    [2016] eKLR
Jurisdiction invoked
Sections 42 and 57 of the Trustee Act; Order 1 rule 8 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Grace Wanjiru Ng’anga & 2 others v Elias Ngugi Ng’ang’a & another [2018] KEELC 2816 (KLR)", Case Analysis (2018). Notice of Motion dated 5th June 2017 (in an Originating Summons suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2816/eng@2018-06-29

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