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ELCDismissedMeru ELC No. 85 of 2017· [2019] KEELC 1231 (KLR)

Boru Dika v Gusan Insaat Sanay, Turzim, Nakikyat Ve Ticaret Anonim Sipiketi & another [2019] KEELC 1231 (KLR)

Environment and Land Court
15 October 2019
LMLUCY N. MBUGUA
1,637 words in judgment
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The bottom line

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A Kenyan landowner's bid to revive a road damage case against a contractor failed because only the highway authority, KeNHA, could grant the orders he wanted.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (Lucy N. Mbugua, ELC Judge) determines a Notice of Motion dated 1st April 2018 by the plaintiff, Boru Dika, seeking review, variation and/or vacation of the court's orders of 24th January 2018, by which the plaintiff's suit and application were struck out with costs to the 2nd Defendant (Kenya National Highway Authority) for failure to comply with the statutory one-month written notice requirement under Section 67(a) of the Kenya Roads Act. The plaintiff sought reinstatement of the suit against the 1st Defendant only, contending the dismissal ought to have applied solely to the 2nd Defendant. The application was opposed by the 1st Defendant (Gusan Insaat Sanay), whose Office Manager, Gokhan Goksun Kaynak, swore a replying affidavit averring that the 1st Defendant was not the project proponent, had concluded its contractual obligations and handed over the site, and lacked authority to alter the road's design. The plaintiff argued the affidavit was defective for want of company authority. The court framed two issues: the validity of the affidavit and the merits of the application. It held the affidavit was not defective, applying Presbyterian Foundation v East Africa Partnership and Mavuno Industries v Keroche Industries: an authorised officer need not be a director or company secretary, and no resolution need be filed. On the merits, the court found the 1st Defendant's mandate derived entirely from the 2nd Defendant, and the orders sought could only be granted at the 2nd Defendant's behest, making reinstatement futile. The application was dismissed with costs to the 1st Defendant, with an advisory note that the plaintiff may institute a fresh suit observing due procedure.

Key legal issues

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01

Validity of an affidavit sworn by an office manager without a filed company resolution

Holding

The affidavit was not defective; an authorised officer need not be a director or company secretary and no resolution need be filed.

Reasoning

The applicant raised the objection only in submissions and filed no further affidavit to challenge the affidavit. Kaynak averred he was duly authorised. Relying on Presbyterian Foundation & Another v East Africa Partnership Ltd, which adopted Mavuno Industries v Keroche Industries, the court held that the Civil Procedure Rules do not restrict affidavits for corporations to directors or secretaries, and the ordinary grammatical meaning of 'authorise' governs. As site manager, Gokhan was conversant with the issues.

p. 2
02

Whether the review application was meritorious

Holding

The application lacked merit because the 1st Defendant's mandate emanates from the 2nd Defendant and the reliefs sought could not be executed against it alone.

Reasoning

The court observed that the 1st Defendant contractor's powers derive from the 2nd Defendant (KeNHA), which controls the road and its design, and that the 1st Defendant had concluded its contractual obligations and handed over the site. Reinstating the suit against the 1st Defendant alone would therefore be futile; the orders sought could only be granted at the behest of the 2nd Defendant. Although Order 1 Rule 10(2) and the overriding objective disfavour defeating suits for misjoinder, the court held reinstatement against the 1st Defendant would serve no purpose.

p. 2

Legal principles established

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  • An affidavit sworn on behalf of a company by an office manager duly authorised, without a formal company resolution or its filing, is not defective.
  • A suit should not be defeated by reason of misjoinder or non-joinder of parties.

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 1st April 2018 seeking review of the orders of 24th January 2018 is dismissed.
  2. 2.Costs of the application to the 1st Defendant.
  3. 3.Advisory note that the plaintiff may institute a fresh suit against the defendants observing due procedure.

Authorities

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Legislation

  • Kenya Roads ActSection 67(a)
  • Civil Procedure ActSection 1B(d)
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 4 rule 1(4)

Cases cited (3)

  • Presbyterian Foundation & Another v East Africa Partnership Ltd & Another
    [2012]eKLR
  • Mavuno Industries & Others vs. Keroche Industries Limited
  • Enock Kirao Muhanji vs. Mbarak Malindi
    ELC NO.58 of 2012
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court; application for review under 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, "Boru Dika v Gusan Insaat Sanay, Turzim, Nakikyat Ve Ticaret Anonim Sipiketi & another [2019] KEELC 1231 (KLR)", Case Analysis (2019). Meru ELC No. 85 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1231/eng@2019-10-15

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