Gatuanyaga Residents Association v Delmonte Company Limited & 3 others [2020] KEELC 729 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit is time barred under section 7 of the Limitations of Actions Act
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
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.
Whether the Plaintiff, a Society, has locus standi to sue in its own name
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
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.
Whether the objections raised amount to properly raised Preliminary Objections
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
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.
Legal principles established
#- 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
#- 1.The Preliminary Objection dated 22nd May 2019 is upheld on the ground that the Plaintiff has no locus standi
- 2.The suit is struck out entirely
- 3.Costs to the 1st Defendant/Objector
- Jurisdiction invoked
- Articles 162 and 165 of the Constitution of Kenya 2010 (invoked by the Plaintiff); Environment and Land Court jurisdiction
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.