Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 6th February 2018 in the main suit at Nakuru· [2019] KEELC 575 (KLR)

Endao Company Limited v Shadrack Cherogony & 5 others [2019] KEELC 575 (KLR)

Environment and Land Court
28 November 2019
DOD. O. Ohungo
1,427 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

A Kenyan company lost its bid to stop land dealings because its lawyer lacked proper board authorization and key landowners were not sued.

What this practically means

#

Executive summary

#
This ruling determines a Notice of Motion dated 6th February 2018 in which the plaintiff, a land buying company claiming to be the registered proprietor of L.R Nos. 473/10 and 9943 in Bahati, Nakuru, sought a temporary injunction restraining the defendants from dealing with, disposing of or alienating the suit property, plus an order inhibiting registration of any dealings, with costs in the cause. The application was supported by an affidavit of John Wendot A. Kibowen, who deposed that the defendants were fraudulently disposing of land to non-shareholders. The 1st and 2nd defendants responded that the land had been subdivided and shared among members pursuant to members' resolutions in 1994 and 2001, with most members holding titles. The 3rd defendant stated he bought 25 acres from the company in 2001 for KShs 3,000,000 and has been in possession since, and raised a preliminary objection that the verifying affidavit was incompetent for want of authority under the company seal as required by Order 4 rule 1(4) of the Civil Procedure Rules. The court applied the Giella v Cassman Brown test as elaborated in Nguruman Limited v Jan Bonde Nielsen. It found no authority under seal annexed and noted a CR12 of 2004 did not list Kibowen as a director, rendering the suit invalid until corrected; a prima facie case can only exist where a valid suit exists. Further, the suit property had been subdivided and the registered proprietors of the new parcels were not joined. The application was dismissed with costs to the 1st, 2nd, 3rd, 5th and 6th defendants.

Key legal issues

#
01

Validity of the suit for want of a properly authorized verifying affidavit

Holding

The suit offends Order 4 rule 1(4) as no authority under seal was annexed and the deponent does not appear in the CR12 list of directors

Reasoning

Order 4 rule 1(4) requires a corporation's verifying affidavit to be sworn by an officer authorized under the company seal. The deponent claimed to be a director but no authority was annexed, and a CR12 dated 6th December 2004 did not list him. The defect is curable but renders the suit invalid until corrected, so no prima facie case exists.

p. 2
02

Existence of a prima facie case over the suit property

Holding

No prima facie case - the suit property has been subdivided and the registered proprietors of the new parcels are not parties

Reasoning

The applicant itself asserts that the land was subdivided and titles issued to non-shareholders; logically the original parcels ceased to exist upon subdivision. Any claim for nullification would require the registered proprietors of the new parcels, who are not joined. The subdivision dispute is for trial, but the defects defeat a prima facie case at this stage.

p. 2

Legal principles established

#
  • A verifying affidavit for a corporate plaintiff must be sworn by an officer duly authorized under the seal of the company; without it the suit is invalid until corrected and no prima facie case can exist
  • The Giella conditions are sequential hurdles; failure at the first stage ends the inquiry

Court orders

#
  1. 1.Notice of Motion dated 6th February 2018 dismissed with costs to the 1st, 2nd, 3rd, 5th and 6th defendants

Authorities

#

Legislation

  • Civil Procedure Rules, 2010Order 4 rule 1(2)
  • Civil Procedure Rules, 2010Order 4 rule 1(4)

Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Original jurisdiction over the suit; application under Civil Procedure Rules, Order 4 rule 1(4) raised; injunction sought pending hearing of the suit

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Endao Company Limited v Shadrack Cherogony & 5 others [2019] KEELC 575 (KLR)", Case Analysis (2019). Notice of Motion dated 6th February 2018 in the main suit at Nakuru. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/575/eng@2019-11-28

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