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ELCPartially AllowedNot stated in judgment (ELC, Thika)· [2020] KEELC 729 (KLR)

Gatuanyaga Residents Association v Delmonte Company Limited & 3 others [2020] KEELC 729 (KLR)

Environment and Land Court
5 November 2020
2,821 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The 1st Defendant/Objector raised a Notice of Preliminary Objection dated 22nd May 2019 seeking dismissal of the suit on three grounds: that the suit is time barred under section 7 of the Limitations of Actions Act; that the Plaintiff, an unincorporated Society registered under the Societies Act, has no capacity to sue in its own name; and that the Court lacks jurisdiction over a claim based on alleged historical injustices dating back to 1895. The Plaintiff opposed, asserting it was duly registered with certificate number 51212, that its cause of action arose from the expiry of the 1st Defendant's lease and the Gazette Notice of 1st March 2019, and that Articles 162 and 165 confer jurisdiction. The parties canvassed the objection by written submissions. Relying on Mukisa Biscuits and Quick Enterprises, Judge L. Gacheru held that the limitation and locus standi limbs were properly raised preliminary objections as pure points of law. On limitation, the Court distinguished the Murang'a ELC ruling relied on by the Objector, holding that the instant suit essentially impugns a Gazette Notice dated 1st March 2019 issued by the National Land Commission and is therefore not time barred. On standing, however, the Court held that under section 41 of the Societies Act a Society must sue through a duly appointed representative; the Plaintiff having sued in its own name, it lacked locus standi, which goes to jurisdiction. The Preliminary Objection was accordingly upheld on the locus standi ground, the suit was struck out entirely, and costs were awarded to the 1st Defendant/Objector. The ruling was delivered virtually on 5th November 2020 pursuant to COVID-19 directions.

Key legal issues

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01

Whether the suit is time barred under section 7 of the Limitations of Actions Act

Holding

The suit is not time barred because the claim impugns a Gazette Notice dated 1st March 2019, not the alleged 1895/1969 eviction of ancestors

Reasoning

The Objector anchored limitation on the alleged eviction of ancestors before 1969, invoking section 7 of the Limitations of Actions Act. The Court distinguished the Murang'a ELC ruling where the cause of action arose in 1895. Here, the Court found the claim essentially challenges the Gazette Notice published by the National Land Commission on 1st March 2019, so time runs from that date and section 7 does not bar the suit.

p. 3
02

Whether the Plaintiff, a Society, has locus standi to sue in its own name

Holding

The Plaintiff has no locus standi because it sued in its own name instead of through a duly appointed representative as required by section 41 of the Societies Act

Reasoning

The Plaintiff described itself as an Association registered under the Societies Act. Section 41 of that Act contemplates a Society appearing through a representative duly appointed in writing. Having brought the suit in its own name without such a representative, the Plaintiff lacks the standing to sue, which goes to jurisdiction and renders the suit bad in law and liable to be struck out.

p. 4
03

Whether the objections raised amount to properly raised Preliminary Objections

Holding

The limitation and locus standi limbs are properly raised preliminary objections as pure points of law; the objection was ultimately upheld only on locus standi

Reasoning

Applying Mukisa Biscuits and Quick Enterprises, the Court held that limitation and locus standi are pure points of law determinable from the pleadings without ascertaining facts elsewhere. Locus standi goes to jurisdiction. The limitation limb failed on the merits but the locus standi limb succeeded, so the Preliminary Objection was upheld and the suit struck out entirely with costs.

p. 3

Legal principles established

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  • A Preliminary Objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct; it cannot be raised if facts must be ascertained from elsewhere or if the court is called upon to exercise judicial discretion
  • A Society registered under the Societies Act must bring suit through a duly appointed representative; suing in its own name robs it of locus standi
  • Without locus standi a suit cannot stand and the court lacks jurisdiction

Court orders

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  1. 1.The Preliminary Objection dated 22nd May 2019 is upheld on the ground that the Plaintiff has no locus standi
  2. 2.The suit is struck out entirely
  3. 3.Costs to the 1st Defendant/Objector

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 162, 165, 260
  • Limitation of Actions ActSection 7
  • Societies ActSection 41; Societies Rules 1968
  • National Land Commission ActSection 15
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (8)

  • Kipsiwo Community Self Help Group Vs Attorney General & 6 others (2013)
  • Mumo Matemu Vs Trusted Society of Human Rights Alliance & 5 others (2014) eKLR
    (2014) eKLR
  • Kenya National Chambers of Commerce & Industry, Murang'a Chapter & Others Vs Delmonte Kenya Limited & Others, Murang'a ELC No. 86 of 2018
  • Mukisa Biscuits Manufacturing Co. Ltd Vs West End Distributors Ltd (1969) EA 696
    (1969) EA 696
  • Quick Enterprises Ltd Vs Kenya Railways Corporation, Kisumu HCCC No.22 of 1999
    Kisumu HCCC No.22 of 1999
  • Owners of Motor Vessel "Lillian" Vs Caltex Oil Kenya Ltd 1989 KLR
    1989 KLR
  • Law Society of Kenya Vs Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000
    Nakuru High Court Civil Case No.464 of 2000
  • Alfred Njau and Others Vs City Council of Nairobi (1982) KAR 229
    (1982) KAR 229
Jurisdiction invoked
Articles 162 and 165 of the Constitution of Kenya 2010 (invoked by the Plaintiff); Environment and Land Court jurisdiction

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, "Gatuanyaga Residents Association v Delmonte Company Limited & 3 others [2020] KEELC 729 (KLR)", Case Analysis (2020). Not stated in judgment (ELC, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/729/eng@2020-11-05

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