Kandara Residence Association & another v Ananas Holdings Limited & 4 others; Director of Survey & 3 others (Interested Parties) [2020] KEELC 1238 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether sub judice and res judicata objections are proper preliminary objections
They are not; they require ascertainment of facts and probing of evidence, so the 2nd to 5th Defendants' objection fails
Applying Mukisa Biscuit and Khaemba, the court held that determining whether the Muranga ELC suit was directly and substantially in issue would require evidence. Raising such points improperly by way of preliminary objection increases costs and confuses issues. The objection was dismissed in its entirety with costs.
Capacity of the 1st Plaintiff, an unincorporated society, to sue
The 1st Plaintiff has no locus standi to sue as it has, and is struck out of the suit
The Plaintiffs conceded the 1st Plaintiff could not sue in its own name. Relying on section 41 of the Societies Act, the court held that a society may act only through a duly appointed representative. Since the 2nd Plaintiff, its Chairman, held written authority from the Board to institute the suit, the society was struck out but the representative action survived.
Whether the 2nd Plaintiff has locus standi and authority to swear documents and sue for the society
Yes; written authority was produced and a formal written authority annexed to pleadings is not indispensable if the deponent affirms authority
The court relied on Bethany Vineyards and Fubeco China Fushun to hold that it suffices for a deponent to state he has authority. A further affidavit and written authority from the Board resolved the objection on non-existence of the association and lack of authority, which were therefore not merited.
Whether the court lacks jurisdiction because the dispute falls under planning laws
The objection fails; the plaint questions acquisition of the suit property and its subsequent sale, not planning or development control
The 1st Defendant argued the complaints fell under the Physical Planning Act with recourse to the County Liaison Committee. On reading the plaint and prayers, the court found no prayer involving planning, use or regulation of development, so the jurisdictional objection was not merited.
Whether the suit is time-barred under section 7 of the Limitation of Actions Act
No; the cause of action accrues from the National Land Commission determination of 7th February 2019, not from evictions dating to 1895
The court accepted that the National Land Commission is empowered to examine historical injustices and make recommendations. Because the suit springs from that determination and the parties' subsequent conduct, the limitation objection was misconceived and was dismissed.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot rest on disputed facts or require ascertainment of evidence
- Res judicata and sub judice cannot be raised by way of preliminary objection because they require probing of evidence
- Locus standi goes to jurisdiction and is properly raised as a preliminary objection
- An official of a society duly appointed in writing may represent it in litigation
Court orders
#- 1.The 2nd to 5th Defendants' Preliminary Objection dated 17th June 2020 is dismissed entirely with costs
- 2.The 1st Defendant's Preliminary Objection dated 23rd June 2020 is dismissed entirely with costs
- 3.The 1st Plaintiff is struck out of the suit for lack of locus standi
- 4.The 4th Interested Party's Preliminary Objection dated 17th June 2020 is upheld only in so far as the 1st Plaintiff's capacity to sue is concerned
- 5.The remainder of the 4th Interested Party's Preliminary Objection (2nd Plaintiff's locus standi, jurisdiction, and limitation) is dismissed
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (not expressly quoted in the extract)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kandara Residence Association & another v Ananas Holdings Limited & 4 others; Director of Survey & 3 others (Interested Parties) [2020] KEELC 1238 (KLR)", Case Analysis (2020). Not stated in judgment (ELC suit, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1238/eng@2020-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.