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ELCPartially AllowedNot stated in the judgment (Petition filed 23 October 2017)· [2018] KEELC 3136 (KLR)

Dishon Muthama Nzina & 26 others v Attorney General & 7 others [2018] KEELC 3136 (KLR)

Environment and Land Court
17 May 2018
JKJ G Kemei
6,401 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out parts of a land dispute, ruling that heirs without letters of administration and wrongly joined parties cannot sue.

What this practically means

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Executive summary

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The 27 Petitioners, described as former members/shareholders of the defunct Mathengeta Farmers Limited, petitioned alleging contravention of constitutional rights (including Articles 27, 35, 40 and 47) after the Company, which had bought 1,761.97 acres from a settler in 1975 and subdivided it into member plots, was dissolved without members' consent, leaving about 160 acres of unallocated land to end up with unauthorised third parties. Together with the petition they moved the Court for conservatory orders over specified Makuyu/Kambiti plots and for orders compelling the Registrar of Companies and the Chief Land Registrar/Registrar of Titles to produce formation, dissolution and transfer records. The Respondents and interested parties filed grounds of opposition, contending lack of capacity (widows without grants of representation), res judicata, improper joinder and that the proper plaintiff is the dissolved Company. The Court framed nine issues. It found the petition was not res judicata, holding the earlier disclosed suits involved different parties and causes. It held the 4th, 7th, 8th, 9th, 11th, 14th and 17th Petitioners lacked locus standi as they had no letters of administration for deceased shareholders, and struck out the petition as against them and against the named interested parties, who had no demonstrable stake or consent to joinder. The Court declined to compel the registries to disclose information, as the Petitioners had never requested it under Article 35 and the Access to Information Act. Conservatory orders were refused because the registered owners of the plots were neither disclosed nor before the Court. Questions on infringement, the proper plaintiff in a dissolved company and reinstatement were left to trial. Costs were in the cause.

Key legal issues

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01

Res judicata

Holding

The petition is not res judicata; the disclosed magistrates' court suits concerned different parties and causes of action and no evidence of prior litigation of the rights claims was adduced

Reasoning

The court set out the five elements of section 7 of the Civil Procedure Act and found the Respondents had not demonstrated that the parties, title or matters in issue were the same. No particulars were given of the Thika CMCC case or HCCA No. 807/2001, so the plea failed.

p. 7
02

Locus standi of widows and non-members suing for deceased shareholders

Holding

The 4th, 7th, 8th, 9th, 11th, 14th and 17th petitioners lack locus standi as they hold no letters of administration; the petition is incompetent as against them

Reasoning

Relying on Article 22, Rule 4 of the Mutunga Rules and Mrima J's decision in Julian Adoyo Ongunga, the court held that only a personal representative with a grant may enforce causes of action surviving a deceased shareholder. The widows had no grants and the non-member's claim is a matter for trial in respect of the remaining petitioners.

p. 8
03

Joinder of the named interested parties

Holding

The interested parties were wrongly joined; the petition against them is struck out

Reasoning

No evidence showed they applied to be enjoined or that they have any identifiable stake or legal interest in the proceedings. Under the definition in Rule 2 of the Mutunga Rules they cannot qualify as interested parties, and the ground of opposition on joinder was upheld.

p. 8
04

Compulsion of the Registrar of Companies and land registries to disclose information

Holding

The prayer fails because the Petitioners never requested the information under Article 35 and section 8 of the Access to Information Act

Reasoning

The court held that a litigant must present their own case and cannot use the court to procure evidence; the Petitioners approached various agencies but not the offices named in the application, and had not complied with the statutory procedure for seeking information.

p. 9
05

Proper plaintiff for wrongs to a dissolved company

Holding

Whether the shareholders are properly before the court is best left to trial, noting Foss v Harbottle and its exceptions, including fraud by wrongdoers in control

Reasoning

The court recited the Foss v Harbottle rule as explained in Arthi Highway Developers and the exceptions in Rai v Rai, including fraud by those controlling the company and infringement of personal rights of shareholders. Since the company is dissolved and petitioners claim personal proprietary interests, the question was left for trial.

p. 9

Legal principles established

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  • A party without locus standi lacks the right to institute and maintain a suit even where a valid cause of action subsists
  • Only a personal representative holding a grant may sue on behalf of the estate of a deceased former shareholder
  • The proper plaintiff in respect of a wrong done to a company is the company itself, subject to exceptions including fraud by those in control
  • An interested party must have an identifiable stake or legal interest in the proceedings and cannot be named without consent or demonstrated interest
  • It is not the business of the court to assist a litigant to procure material for litigation; statutory procedures for access to information must first be complied with

Court orders

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  1. 1.The application, in so far as it relates to the 1st-3rd, 5th, 6th, 10th, 12th-13th, 15th-16th, 18th-27th petitioners, is upheld
  2. 2.The application in so far as it relates to the 4th, 7th, 8th, 9th, 11th, 14th and 17th petitioners is dismissed, the objection on capacity succeeding
  3. 3.The petition, as filed in so far as it relates to the 4th, 7th, 8th, 9th, 11th, 14th and 17th petitioners, is incompetent and is struck out
  4. 4.The petition in so far as it relates to the named interested parties is struck out
  5. 5.Costs shall be in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 2, 10, 19, 20, 21, 22, 23, 258, 27, 35, 40(1), 47, 159(2)(d)
  • Civil Procedure Actsection 7; section 2 (definition of legal representative)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013Rules 2, 4(1), 4(2), 5(b), 5(d)(i), 18
  • Companies Act (repealed) / Companies Actsections 339(6), 340 and 912
  • Law of Succession Actsections 3 and 82
  • Law Reform Actsection 2
  • Fatal Accidents Actsection 4
  • Access to Information Act, No. 31 of 2016section 8

Cases cited (16)

  • Mukisa Biscuits Manufacturing Company Limited vs West End Distributors Limited
    (1969) EA 696
  • D T Dobie Company Limited vs Joseph Mbaria & Anor
    (1980) eKLR
  • Kenya National Union of Teachers (Nakuru Branch) vs John Mawiga Kirika & 2 Others
    Nakuru HCC No. 83 of 2003
  • Yat Tung Investment Company Limited vs Dao Heng Bank Ltd
    (1975) AC 581
  • Rose Wangui Mambo vs Limuru Country Club and 19 Others
    Nairobi HCCC No. 160 of 2013
  • Kanyi Naran Partel vs Olkalou Saw Mill Limited
    Nairobi HCCC No. 1521 of 1971
  • John Blasious Ogati Matundura of Gusii Mwalimu Investment vs AG
    (2016)
  • Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of the Estate of Fanuel Evans Amudavi, Deceased)
    (2016) eKLR
  • Virginia Edith Wamboi vs Joash Ochieng Ougo & Another
    (1982-88) 1 KAR
  • Trouistik Union International & Another vs Jane Mbeyu & Another
    Civil Appeal No. 145 of 1990
  • Foss vs Harbottle
    (1843) 67 ER 189
  • Rai and Others vs Rai and Others
    [2002] 2 EA 537
  • Grace Wanjiru Munyinyi & Another vs Gedion Waweru Githunguri & 5 others
    [2011] eKLR
  • Arthi Highway Developers Ltd vs Westend Butchery Ltd & 6 Others
    Civil Appeal No. 246 of 2013
  • Moir vs Wallerstainer
    [1975] 1 All ER 849
  • Joseph Mungai Karanja vs Dishon Muthama
    Civil Case No. 116 of 2012
Jurisdiction invoked
Articles 22 and 23 of the Constitution (enforcement of the Bill of Rights) read with the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013

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, "Dishon Muthama Nzina & 26 others v Attorney General & 7 others [2018] KEELC 3136 (KLR)", Case Analysis (2018). Not stated in the judgment (Petition filed 23 October 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3136/eng@2018-05-17

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