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ELCPartially AllowedELC Case (Murang'a) — Suit filed 27/6/2018 (number not stated in judgment)· [2021] KEELC 2001 (KLR)

Kandara Residents Association & 4 others v Delmonte (K) Limited & 4 others [2021] KEELC 2001 (KLR)

Environment and Land Court
15 September 2021
2,769 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court can hear historical land injustice claims, but unregistered community groups must sue through named office bearers, not in their own name.

What this practically means

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Executive summary

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The 1st Defendant raised a preliminary objection dated 15/6/2020 on three grounds: that the suit is time barred under section 7 of the Limitation of Actions Act; that the 1st Plaintiff, an unincorporated body registered under the Societies Act, has no capacity to sue and the 2nd–5th Plaintiffs plead no independent cause of action; and that the court lacks jurisdiction over claims of historical land injustice. The 4th Defendant supported the objection; the Plaintiffs opposed it, relying on D T Dobie & Muchina and arguing that their suit flowed from the National Land Commission's determination of their historical-injustice complaint. Applying the Mukisa Biscuits test as reiterated by the Supreme Court in IEBC v Jane Cheperenger, the court held that the time-bar objection was unsustainable because the Plaintiffs' cause of action was derivative, arising from the NLC's recommendations determined on 7/2/2019, not from the underlying historical grievances dating to the 1890s. On jurisdiction, following Safepak Limited v Henry Wambega (quoting Chief Land Registrar v Nathan Tirop Koech), the court held that under Article 162(2)(b) of the Constitution and section 13 of the ELC Act it has jurisdiction over historical land injustice claims, nothing having ousted it. However, the court held that the 1st Plaintiff, being unincorporated, had no capacity to sue in its own name and could not donate authority to the 2nd–5th Plaintiffs, who were not shown to be office bearers or representatives. The objection therefore partly succeeded: the 1st Plaintiff's suit was struck out as incompetent, with costs to the 1st and 3rd Defendants, while the objection on the 2nd–5th Plaintiffs' cause of action failed as it was not a pure point of law.

Key legal issues

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01

Whether the suit is statute barred under section 7 of the Limitation of Actions Act

Holding

The time-bar objection fails; the cause of action derives from the NLC's determination of 7/2/2019, not the historical injustices dating to the 1890s

Reasoning

The plaint seeks enforcement of NLC recommendations, nullification of post-determination subdivisions and an injunction against negotiations contrary to the NLC determination. The cause of action thus arose from the NLC process, which was determined in 2019, not from the historical grievances themselves. The limitation objection was therefore unsustainable and was dismissed.

p. 3
02

Whether the court has jurisdiction over claims based on historical land injustices

Holding

Yes; Article 162(2)(b) and section 13 of the ELC Act confer jurisdiction, and nothing in the Constitution or the NLC Act ousts it

Reasoning

Relying on Safepak Limited v Henry Wambega quoting Chief Land Registrar v Nathan Tirop Koech, the court held that a claim of historical land injustice fits within claims to title to land. Section 15(3)(b) of the NLC Act permits the ELC to deal with historical injustice claims capable of being addressed through the ordinary court system, and the NLC's mandate is not exclusive.

p. 3
03

Whether the 1st Plaintiff has capacity to sue

Holding

No; being an unincorporated body registered under the Societies Act, it cannot sue in its own name and its suit is struck out

Reasoning

The 1st Plaintiff is a community based organization registered under the Societies Act. Unincorporated bodies must sue through their office bearers. The suit was not instituted by the 2nd–5th Plaintiffs on behalf of or as representatives of the 1st Plaintiff, and the 2nd–5th Plaintiffs were not disclosed as office bearers. Following Kipsiwo Community Self Help Group v Attorney General, the 1st Plaintiff's suit was incompetent.

p. 4
04

Whether the 2nd–5th Plaintiffs have pleaded an independent cause of action

Holding

That question is not a pure point of law and can only be determined at the trial

Reasoning

The Plaint describes the 2nd–5th Plaintiffs as suing in their own capacity, and paras 12, 14, 15, 18, 22, 24 and 25 disclose their grievance. Determining whether they have a cause of action would require investigation of facts and matters going to merit, contrary to the Mukisa Biscuits test for preliminary objections, so that limb of the objection failed.

p. 4

Legal principles established

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  • An unincorporated body has no capacity to sue in its own name; it must sue through its office bearers, who must be identified and shown to have authority
  • The ELC has jurisdiction to hear claims founded on historical land injustice, whether or not the NLC is seized of the matter
  • A claim arising from a party's actions following NLC recommendations is a derivative cause of action from which fresh limitation periods run

Court orders

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  1. 1.The preliminary objection partly succeeds
  2. 2.The 1st Plaintiff's suit is incompetent and is struck out
  3. 3.Costs shall be in favour of the 1st and 3rd Defendants

Authorities

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Legislation

  • Limitation of Actions Actsection 7
  • National Land Commission Actsection 15, section 15(3)(b), section 15(3)(b)(ii)
  • Constitution of Kenya, 2010Article 67(2)(e), Article 162(2)(b)
  • Environment and Land Court Actsection 13
  • Civil Procedure RulesOrder 1 Rule 8
  • Societies Act

Cases cited (12)

  • Owners of Motor Vehicle Vessel "Lilian S" v Caltex Oil Kenya Limited
    (1989) KLR 1
  • Haron Onyancha v The National Police Service Commission & Anor
    [2017] eKLR
  • Moffat Muriithi Muchi v Wanjiru Wanjohi Gatundu & 2 Others
    [2019] eKLR
  • Kenya National Chamber of Commerce and Industry Muranga Chapter & others v Delmonte Kenya Limited & Others
    ELC No. 86 of 2018
  • Kipsiwo Community Self Help Group v Attorney General & 6 Others
    [2013] eKLR
  • Nyamokenya Maranatha Faith Assemblies v Bosco Mogere & 5 others
    (2017) eKLR
  • D T Dobie & Company Ltd v Muchina
    (1982) KLR 1
  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Independent Electoral & Boundaries Commission v Jane Cheperenger & 2 others
    Civil Application No. 36 of 2014 [2015] eKLR
  • Safepak Limited v Henry Wambega & 11 others
    [2019] eKLR
  • Chief Land Registrar & 4 others v Nathan Tirop Koech & 4 others
    [2018] eKLR
  • Wilmot Mwadilo, Edwin Mwakaya, Amos Nyatta & Patrick Mbinga v Eliud Timothy Mwamunga & Sagalla Ranchers Limited
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution read with section 13 of the Environment and Land Court Act

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, "Kandara Residents Association & 4 others v Delmonte (K) Limited & 4 others [2021] KEELC 2001 (KLR)", Case Analysis (2021). ELC Case (Murang'a) — Suit filed 27/6/2018 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2001/eng@2021-09-15

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