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ELCStruck OutELC Case No. 266 of 2014· [2019] KEELC 3414 (KLR)

Mary Vande & 2 others v Jane Anyanga [2019] KEELC 3414 (KLR)

Environment and Land Court
9 May 2019
NMN.A. Matheka
1,343 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The three plaintiffs claimed to be owners of Plots Nos. 10, 11 and 14 at Eshihongo Market, allegedly created by subdivision of Plot No. 7 and allocated to them by the former County Council of Kakamega. They sued Jane Anyanga personally for a permanent injunction restraining her from trespassing, constructing, digging trenches, disposing of building materials or otherwise interfering with their plots, plus costs and interest, alleging continuing trespass on their plots. The defendant denied liability, averring that Plot No. 7 was allocated in 1993 to Eshihongo Maji Women Group, a duly registered self-help group of twenty members of which she was merely one, that the plot was never subdivided to create the plaintiffs' plots, and that the plaintiffs had sued the wrong party. The court identified as the preliminary issue whether the defendant was the correct party to be sued, and found it was not disputed that Plot No. 7 had been allocated to the Women Group. Relying on authorities on the proper parties to a suit and on suits by unincorporated bodies, the court held that a plaintiff is dominus litis but shoulders the blame for suing a wrong party; that a suit against an unincorporated body must be brought against all members or in a representative capacity; and that a suit can be struck out where a wrong party is enjoined. The plaintiffs, despite admitting the plot belonged to the Group and despite the defence pleading this since August 2014, did not amend to join the Group. The court held parties are bound by their pleadings, found the suit unmerited, struck it out with costs to the defendant.

Key legal issues

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01

Whether the defendant was the correct party to be sued

Holding

The defendant was the wrong party; the suit plot was allocated to Eshihongo Maji Women Group, a registered self-help group, and the plaintiffs admitted this but did not amend to sue the Group

Reasoning

The court found it undisputed that Plot No. 7 was allocated to the self-help group. The defence, filed in August 2014, pleaded this, yet the plaintiffs maintained the defendant personally trespassed and did not even orally amend their pleadings to join the Group. Substantive justice principles under Article 159 only apply to parties actually before the court, so the merits could not be determined against the defendant.

p. 2
02

Whether suits by or against unincorporated bodies must be brought against their members

Holding

A suit against an unincorporated body must be brought against all members or in a representative capacity under Order 1 rule 8; the plaintiffs sued none of these properly

Reasoning

Relying on Bosire J in Free Pentecostal Fellowship in Kenya v KCB, the court noted the common law position that suits by or against unincorporated bodies must be brought in the names of, or against, all members, or by/against one or more in a representative capacity under Order 1 rule 8 of the Civil Procedure Rules. The defendant was merely one member of a twenty-member group.

p. 2

Legal principles established

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  • Parties are bound by their pleadings, and a suit against the wrong party goes to the root of the matter and cannot proceed on the merits

Court orders

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  1. 1.The plaintiffs' suit is struck out
  2. 2.Costs of the suit awarded to the defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 8
  • Civil Procedure Actprovisions on parties to suits
  • Constitution of KenyaArticle 159

Cases cited (4)

  • Kenya Medical Laboratory Technicians and Technologists Board & 6 others v Attorney General & 4 others
    (2017) eKLR
  • Free Pentecostal Fellowship in Kenya vs KCB
    NRB HCC 5116/2002 (OS)
  • Football Kenya Federation v Kenyan Premier League Limited & 4 others
    (2015) eKLR
  • Trusted Society of Human Rights Alliance vs Mumo Matemu & 5 Others
    2014 eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction (Environment and Land Court Act); no specific provision stated in the judgment

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, "Mary Vande & 2 others v Jane Anyanga [2019] KEELC 3414 (KLR)", Case Analysis (2019). ELC Case No. 266 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3414/eng@2019-05-09

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