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ELCOtherKitale ELC Case (plaint filed 23/1/2020, number not stated in the judgment)· [2020] KEELC 3571 (KLR)

Organics 4 Orphans International v Thrive for Good Foundation & 16 others [2020] KEELC 3571 (KLR)

Environment and Land Court
13 February 2020
MNMwangi Njoroge
1,589 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court paused an NGO land dispute until a separate forum decides who legitimately controls the organisation behind the case.

What this practically means

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Executive summary

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The plaintiff, an NGO registered under the Non-Governmental Organizations Co-ordination Act, sued Thrive for Good Foundation, a Canadian registered charity, and 16 natural persons claiming to be the beneficial owner of LR No. 2116/947 and 2116/1090 at Milimani Estate, Kitale, and sought declarations, a permanent injunction and eviction, together with interim orders restraining meetings on the land. Before the inter-partes hearing of the injunction motion, a dispute erupted over representation: M.M. Kimuli & Co. Advocates filed a notice of change of advocate to take over from Kraido & Co., asserting that Kraido had never been authorised by the plaintiff, while a consent was simultaneously filed purporting to discontinue the entire suit, executed by Kimuli's firm and by Mrs. Kayugira for only some of the defendants. The court identified a power struggle over control of the plaintiff, evidenced by parallel suits in Nairobi and Kitale. Applying Order 9 rules 1, 5, 6, 12 and 13 and Order 25 rules 1 and 2 of the Civil Procedure Rules, and noting that its jurisdiction is limited by Section 13 of the Environment and Land Court Act, the court declined to determine who properly controlled the plaintiff or to sanction the change of advocates, holding that such determination belongs to another forum. It also held that the consent could not withdraw the whole suit since unrepresented defendants were not party to it. In lieu, the court stayed the proceedings until control of the plaintiff is resolved elsewhere.

Key legal issues

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01

Proper representation of the plaintiff on the record

Holding

The court declined to find that M.M. Kimuli & Co. Advocates were properly on record, reserving the issue until control of the plaintiff is resolved elsewhere

Reasoning

The court noted a power struggle over control of the plaintiff and parallel litigation. Determining who had authority to instruct counsel would take the court beyond its Section 13 jurisdiction under the Environment and Land Court Act, which it was reluctant to do.

p. 2
02

Effectiveness of the consent to withdraw the entire suit

Holding

The consent was ineffective to withdraw the whole suit because Mrs. Kayugira's clients, party to it, were only some of the defendants while the rest were unrepresented

Reasoning

Under Order 25 rules 1 and 2, discontinuance by consent must involve all parties, and leave or consent operates only on those before the court who agreed. A consent signed by a section of defendants could not dispose of the entire suit.

p. 2

Legal principles established

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  • A party may change advocates without order or consent of the former advocate before judgment, by filing and serving notice of change of advocate under Order 9 rule 5
  • A consent to discontinue a suit under Order 25 rule 2(1) binds only the parties who signed it and cannot wholly discontinue a suit where some defendants are unrepresented

Court orders

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  1. 1.An order staying the proceedings until the issue of who is properly in control of the plaintiff is finally resolved in other fora and a decision thereon is presented before this court for the purpose of sanctioning or otherwise of the coming onto the record of M.M. Kimuli & Co. Advocates and the discontinuance of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 rule 1
  • Civil Procedure RulesOrder 9 rule 5
  • Civil Procedure RulesOrder 9 rule 6
  • Civil Procedure RulesOrder 12
  • Civil Procedure RulesOrder 9 rule 13
  • Civil Procedure RulesOrder 25 rule 1
  • Civil Procedure RulesOrder 25 rule 2 and 2(1)
  • Environment and Land Court ActSection 13
  • Non-Governmental Organizations Co-ordination Act
Jurisdiction invoked
Section 13 of the Environment and Land Court Act, 2012

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, "Organics 4 Orphans International v Thrive for Good Foundation & 16 others [2020] KEELC 3571 (KLR)", Case Analysis (2020). Kitale ELC Case (plaint filed 23/1/2020, number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3571/eng@2020-02-13

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