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ELCStruck OutNot stated in the judgment· [2019] KEELC 1677 (KLR)

Ematundu Kaper Richards Orphanage v Justine Mutobera & 4 others [2019] KEELC 1677 (KLR)

Environment and Land Court
25 September 2019
1,219 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out an orphanage's land suit because the orphanage no longer legally existed, warning that representative community suits must follow strict procedural rules.

What this practically means

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Executive summary

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The 1st and 3rd defendants raised a preliminary objection against a suit instituted in the name of Ematundu Kasper Richards Orphanage, contending that the suit was scandalous, frivolous and vexatious; that the plaintiff lacked locus standi having been merged with Akhonya Trust children home; that the orphanage was not a legal entity capable of suing; that the deponent of the verifying affidavit lacked authority as no seal was affixed; and that the suit was res judicata to Butere PMCC No. 31 of 2010, which had been heard and determined in favour of the 1st and 3rd defendants. The respondents contended that they sued as community members in the interest of the entire community and that the Butere matter involved different parties. The court, presided over by N.A. Matheka, J, restated the classic Mukisa Biscuit definition of a preliminary objection and Oraro v Mbajja's requirement that a preliminary objection raise a pure point of law uncontaminated by facts, and held that res judicata was properly raised as a preliminary point under Sections 6 and 7 of the Civil Procedure Act. On perusal of the Butere order, the court found the parties and subject matter similar. On the evidence, the court found that Ematundu had been merged with Akhonya Trust children home and was therefore incapable of instituting a suit, and that the orphanage was not a legal entity capable of suing or being sued in its own name. Relying on Order 1 rule 8 of the Civil Procedure Rules and the Al Mhala Swaleh decision, the court held that community members suing representatively ought to have followed the laid-down procedure. Upholding the preliminary objection, the court struck out the suit with costs to the defendants.

Key legal issues

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01

Whether the suit was properly instituted by a body with locus standi

Holding

The suit fails because the plaintiff, Ematundu Kasper Richards Orphanage, does not exist as a legal entity capable of suing, having merged with Akhonya Trust children home

Reasoning

The court examined the documentary evidence on record and found that Ematundu had been merged with Akhonya Trust children home, rendering it incapable of instituting a legal suit. Relying on Order 1 rule 8 of the Civil Procedure Rules and the Al Mhala Swaleh decision, the court held that community members suing representatively must follow the laid-down procedure of individual identification and notice, which was not done here.

p. 2
02

Whether the res judicata objection based on Butere PMCC No. 31 of 2010 was properly raised

Holding

Res judicata is a proper ground for a preliminary objection, and the court found the parties and subject matter in the Butere suit similar

Reasoning

The court applied Sections 6 and 7 of the Civil Procedure Act and the Mukisa Biscuit and Oraro v Mbajja tests, holding that res judicata, being a point of law not dependent on contested facts, is properly raised as a preliminary objection. On perusal of the Butere order, the court found the parties similar and so was the subject matter, supporting the defendants' objection.

p. 2
03

Whether the community members could sue on behalf of the community without complying with Order 1 rule 8

Holding

Representative suits require compliance with Order 1 rule 8, including notice to all interested persons and their individual identification

Reasoning

The respondents argued they sued in the interest of the entire community. The court invoked Order 1 rule 8 and the holding in Al Mhala Swaleh & 4 others v Mohmamed M. Sheikh Ali & 12 others that a party may file such proceedings but may not proceed without leave of the court, and that notice must be given to all other parties to avoid repeated litigation. The community members had not followed this procedure.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law and cannot be raised where facts have to be ascertained or judicial discretion exercised
  • A body without legal capacity cannot sue or be sued in its own name, and persons suing representatively must comply with Order 1 rule 8 including notice to all interested persons

Court orders

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  1. 1.The preliminary objection is upheld
  2. 2.This suit is struck off with costs to the defendants

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 1 rule 8

Cases cited (3)

  • Mukisa Biscuit Manufacturing Company Ltd vs West End Distributors Ltd
    (1969) E.A 696
  • Oraro vs. Mbajja
    [2005] e KLR
  • Al Mhala Swaleh & 4 others v Mohmamed M. Sheikh Ali & 12 others
    [2017] eKLR
Jurisdiction invoked
Original civil jurisdiction; preliminary objection under Sections 6 and 7 of the Civil Procedure Act Cap 21 and 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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Later judgments citing this (1)

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

Cite this brief

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Cite this brief

Caselaw, "Ematundu Kaper Richards Orphanage v Justine Mutobera & 4 others [2019] KEELC 1677 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1677/eng@2019-09-25

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