Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck Out· [2019] KEELC 166 (KLR)

Curly Klurly Ltd v Mtoi Mwero Mtoi & 3 others [2019] KEELC 166 (KLR)

Environment and Land Court
18 November 2019
CYC.K. Yano
787 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

#

A company's lawsuit was thrown out entirely because it had no board resolution authorising the filing—costs awarded against it.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Mombasa (C.K. Yano, J) determines a preliminary objection dated 19th March 2019 by the defendants, who contended that the plaint and entire proceedings by the plaintiff company, Curly Wurly Limited, were fatally defective for contravention of Section 5 of the Civil Procedure Act, Sections 5, 6 and 7 of the Companies Act, 2015, and Order 5 Rules 1 and 8 and Order 9 Rule 2 of the Civil Procedure Rules. The defendants, through M/s Ngonze & Ngonze Advocates, relied on authorities holding that a company cannot institute suit without a board resolution sanctioning the action, and urged that the verifying affidavit, plaint and suit be struck out with costs. The plaintiff filed no submissions in response. Examining the plaintiff's list of documents filed on 31st December 2018, the court found no board resolution exhibited. Although an authority under seal authorised Ateet Jetha to execute documents and swear affidavits, and he signed the verifying affidavit, the court held that such authority cannot amount to a board resolution to file suit. Concurring with the defendants, and noting the objection was unopposed, the court held that the company was not before the court. The court struck out the entire suit together with the interlocutory application dated 31st December 2018, with costs to the defendants.

Key legal issues

#
01

Whether a suit filed by a company without a board resolution authorising its institution is fatally defective

Holding

Yes; the suit was struck out because no resolution of the Board of Directors authorised the filing of the suit, and an authority under seal empowering an individual to sign documents and swear affidavits cannot substitute for a board resolution

Reasoning

The court reviewed the plaintiff's list of documents filed on 31st December 2018 and noted that no board resolution was exhibited. It accepted the defendants' authorities holding that a company resolution is necessary to institute suit on behalf of a company. Although Ateet Jetha held an authority under seal to execute documents and swear affidavits, the court held this did not amount to a board resolution to file suit. The plaintiff filed no submissions in opposition, and the objection was therefore unopposed.

p. 2

Legal principles established

#
  • Where a suit is instituted for and on behalf of a company, there must be a board resolution sanctioning the commencement of the action; an authority under seal to sign documents and swear affidavits does not amount to such a resolution.
  • In the absence of a board resolution, the company is not before the court and its suit is liable to be struck out.

Court orders

#
  1. 1.The entire suit is struck out
  2. 2.The interlocutory application dated 31st December 2018 is struck out
  3. 3.Costs of the suit awarded to the defendants

Authorities

#

Legislation

  • Civil Procedure ActSection 5
  • Companies Act, 2015Sections 5, 6 and 7
  • Civil Procedure RulesOrder 5 Rules 1 and 8; Order 9 Rule 2

Cases cited (5)

  • Affordable Homes Africa Ltd v Henderson & 2 Others
    (2004) eKLR
  • East African Portland Cement Ltd v Capital Markets Authority & 4 Others
    (2014) eKLR
  • Philomena Ndanga Karanja & 2 Others v Edward Kamau Maina
    (2015) eKLR
  • Kenya Commercial Bank Ltd v Stage Coach Management Ltd
    (2014) eKLR
  • Grace Wairimu Mungai v Catherine Njambi Muya
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction; suit instituted under the Civil Procedure Act and Civil Procedure Rules (specific constitutional/statutory jurisdictional provision not cited in the ruling)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (2)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Curly Klurly Ltd v Mtoi Mwero Mtoi & 3 others [2019] KEELC 166 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/166/eng@2019-11-18

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