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ELCAllowedNot stated on the face of the judgment· [2021] KEELC 1620 (KLR)

George Wanyoike Njuguna & another v Daniel Mbugua Mari & 23 others [2021] KEELC 1620 (KLR)

High Court of Kenya
28 September 2021
657 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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You must get court permission before suing a Kenyan co-operative or company in liquidation — filing first without leave could get your case thrown out.

What this practically means

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Executive summary

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The applicants, administrators of the estate of Paul Njuguna Wanyoike (deceased), a former member of Ngundu Farmers' Co-operative Society Ltd, sought leave under Section 432 of the Insolvency Act, Section 228 of the Companies Act (Schedule 1) and the Co-operative Societies Act to commence a land claim against the society, now in liquidation, and other persons to whom the deceased's allocated parcel was allegedly encroached upon and transferred with the society's involvement. The court held that Section 228 of the Companies Act applies mutatis mutandis to the winding up of co-operative societies through Section 94 of the Co-operative Societies Act, and that leave must mandatorily be obtained before proceedings are commenced, not retrospectively, as confirmed in Bisai v Kenya Commercial Bank and Mwethaga v Thabiti Finance. The court found the applicants had demonstrated an actionable cause of action against the intended respondents. Invoking Article 48 of the Constitution on access to justice, the court held that leave should generally be granted as of right without inhibitive conditions. It allowed the application in terms of prayers 2 and 3 of the Notice of Motion. No costs order was recorded in the ruling delivered virtually by M.D. Mwangi J on 28 September 2021.

Key legal issues

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01

Mandatory nature of leave requirement under Section 228 of the Companies Act

Holding

Section 228 applies mutatis mutandis to co-operative societies in winding up via Section 94 of the Co-operative Societies Act, and leave must precede commencement of proceedings

Reasoning

The court noted Section 94 of the Co-operative Societies Act imports Section 228 of the Companies Act into the winding up of co-operative societies, that Section 228 is mandatory, and that authorities (Bisai and Mwethaga) confirm leave must be sought before, not after, filing suit.

p. 2
02

Access to justice and terms of leave

Holding

Leave should generally be granted without inhibitive conditions given the Article 48 right of access to justice

Reasoning

Relying on Article 48 of the Constitution, the court held that applicants, like all persons, have a constitutional right to institute the intended suit, and leave should not ordinarily be fettered with inhibitive conditions.

p. 3
03

Existence of an actionable cause of action

Holding

The Applicants demonstrated an actionable claim against the intended Respondents

Reasoning

The applicants, as legal representatives of a deceased member allocated land by the co-operative society in liquidation, alleged encroachment and transfer of the land with the society's involvement, satisfying the court that an actionable cause exists.

p. 2

Legal principles established

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  • Leave to commence proceedings against a company (or co-operative society in winding up) must be obtained before the action is brought, not retrospectively, and should generally be granted without inhibitive conditions in light of Article 48

Court orders

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  1. 1.Leave granted to the Applicants to commence proceedings against Ngundu Farmers' Co-operative Society Ltd (in liquidation) and the other intended Respondents, in terms of prayers 2 and 3 of the Notice of Motion

Authorities

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Legislation

  • Insolvency Act, 2015Section 432
  • Companies Act, 2015Section 228 (Schedule 1)
  • Companies Act, 2015Section 235
  • Co-operative Societies ActSection 94
  • Constitution of Kenya, 2010Article 48

Cases cited (2)

  • Bisai & Another -vs- Kenya Commercial Bank Ltd
    (2002) 2 E.A 346
  • Mwethaga -vs- Thabiti Finance Co. Ltd & Others
    C.A. No. 120 of 1998
Jurisdiction invoked
Section 228 of the Companies Act, 2015 read with Section 94 of the Co-operative Societies Act and Section 432 of the Insolvency Act, 2015

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "George Wanyoike Njuguna & another v Daniel Mbugua Mari & 23 others [2021] KEELC 1620 (KLR)", Case Analysis (2021). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1620/eng@2021-09-28

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