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ELCDismissedNot stated in judgment· [2021] KEELC 4104 (KLR)

Faith & Hope Properties Kenya Ltd v James Muchiri Waweru & another [2021] KEELC 4104 (KLR)

Environment and Land Court
5 March 2021
OAO.A. Angote
1,514 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling by O.A. Angote J of the Environment and Land Court, Machakos, disposed of the Defendants' Notice of Preliminary Objection dated 28th September 2020, which sought striking out of the entire suit on two grounds: absence of a resolution under seal appointing the firm of S.J. Nyang & Company Advocates to institute the suit on behalf of the corporate Plaintiff, and a Verifying Affidavit sworn by David Ruthia Kabogo allegedly offending Order 4 Rule 1(4) of the Civil Procedure Rules 2010. The Defendants relied on Mukisa Biscuit Manufacturing, Kenya Commercial Bank v Stage Coach Management, Directline Assurance v Ondimu, East African Portland Cement and Affordable Homes Africa, contending that without a board resolution the company was not properly before the court. The Plaintiff countered that Order 4 Rule 1(4) does not require the resolution to be filed with the plaint, relying on Republic v Registrar General and Leo Investments v Trident Insurance. The court adopted the reasoning in Space Geo Enterprises v KeNHA, holding that the law is settled: failure to file a corporate resolution with the plaint does not invalidate the suit; such resolutions may be filed at any time before the suit is fixed for hearing, and proceedings can be ratified after filing by the shareholders or the Board. The Preliminary Objection was found unmeritorious and dismissed with costs.

Key legal issues

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Whether absence of a filed board resolution under seal appointing advocates and authorizing the verifying affidavit is fatal to a corporate plaintiff's suit

Holding

It is not fatal; the resolutions can be filed and served at any time before trial, and the mere failure to file them with the plaint does not invalidate the suit.

Reasoning

The court aligned itself with decided authorities (Space Geo Enterprises, Leo Investments, Republic v Registrar General, East Africa Safari Air) holding that Order 4 Rule 1(4) does not require the resolution to be filed with the plaint. Proceedings may be ratified after filing by shareholders or the Board, and striking out would deny the plaintiff an opportunity to regularize the appointment of its advocates.

p. 3

Legal principles established

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  • Failure to file a company resolution authorizing an advocate to institute suit, or authorizing a director to swear a verifying affidavit, alongside the plaint does not invalidate the suit; such resolutions may be filed at any time before the suit is fixed for hearing.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 28th September, 2020 is dismissed
  2. 2.Costs of the Preliminary Objection to the Defendants... actually costs awarded against the Defendants is not stated; the objection was dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 4 Rule 1(4)

Cases cited (11)

  • Mukisa Biscuit Manufacturing Co. Ltd vs. West End Distributors Ltd (1969) EA 696
    (1969) EA 696
  • Kenya Commercial Bank Limited vs. Stage Coach Management Ltd [2014] eKLR
    [2014] eKLR
  • Directline Assurance Company Limited vs. Tomson Ondimu [2019] eKLR
    [2019] eKLR
  • East African Portland Cement Ltd vs. Capital Markets Authority & 4 Others [2014] eKLR
    [2014] eKLR
  • Affordable Homes Africa Limited vs. Ian Henderson & 2 others HCCC No. 524 of 2004
    HCCC No. 524 of 2004
  • Republic vs. Registrar General & 13 Others Misc. Application No. 67 of 2005 [2005] eKLR
    [2005] eKLR
  • Leo Investments Ltd vs. Trindent Insurance Co. Ltd (2018) eKLR
    (2018) eKLR
  • Space Geo Enterprises Limited vs. Kenya National Highways Authority [2019] eKLR
    [2019] eKLR
  • Leo Investments Ltd vs. Trident Insurance Co. Ltd (2014) eKLR (as cited in Space Geo)
    (2014) eKLR
  • Republic vs. Registrar General and 13 Others (2015) eKLR (as cited in Space Geo)
    (2015) eKLR
  • East Africa Safari Air Ltd vs. Antony Ambaka Kegodre & Another (2011) eKLR
    (2011) eKLR
Jurisdiction invoked
Not expressly stated; first-instance civil suit jurisdiction under the Civil Procedure Act and Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Faith & Hope Properties Kenya Ltd v James Muchiri Waweru & another [2021] KEELC 4104 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4104/eng@2021-03-05

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