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ELCStruck OutNotice of Motion dated 18th June, 2020 in Originating Summons dated 18th June, 2020 (Machakos)· [2021] KEELC 4256 (KLR)

Hathinge Self Help Group (With a membership of 293 members and suing through its registered officials: James Nzeru Musembi, Daniel Mutinda Ndwiki and Harrison Mutunga Wambua) v Co-operative Bank Housing & another [2021] KEELC 4256 (KLR)

Environment and Land Court
19 February 2021
2,333 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan court struck out a self-help group's bid to stop its eviction because unregistered societies cannot sue in their own name without proper officials.

What this practically means

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Executive summary

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The Plaintiff, Hathinge Self Help Group, a registered society claiming 293 members, filed an Originating Summons dated 18th June 2020 seeking declarations that its members had acquired L.R. No. 14750/2 and its resultant sub-divisions by adverse possession, having occupied the land since 1980 without force, fraud or permission, and that the registered owner holds it in trust for them. Together with the summons it filed a Notice of Motion seeking a temporary injunction restraining the Defendant from evicting its members, demolishing structures or interfering with their quiet possession pending determination of the summons. The Defendant was served but did not respond. The Plaintiff invoked the Giella v Cassman Brown conditions for interlocutory relief. Angote J, however, disposed of the application on threshold grounds. First, the court held that societies registered under the Societies Act are unincorporated bodies with no capacity to sue in their own names; they may sue only through trustees or officials in a representative capacity under Order 1 rule 8. Second, the deponent of the supporting affidavits, Harrison Mutunga Wambua, described himself merely as 'the Plaintiff's registered official' without disclosing his office, and his name did not appear among the three officials who signed the annexed resolutions; he therefore lacked locus standi to plead for the Plaintiff. Third, the copy of the title annexed did not show the Defendants as registered proprietors, contrary to Order 37 Rule 7 of the Civil Procedure Rules, which requires a certified extract of title in support of such a summons. The application was found bad in law, unmeritorious and was struck out without costs. The underlying Originating Summons remains pending.

Key legal issues

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01

Capacity of a registered society to institute proceedings

Holding

A registered society is not a legal entity capable of suing in its own name and must sue through trustees or officials in a representative capacity under Order 1 rule 8

Reasoning

The court, relying on Eritrea Orthodox Church v Wariwax Generation Ltd and Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank, held that unincorporated bodies registered under the Societies Act lack legal personality to institute proceedings in their own names and may only sue in a representative capacity.

p. 3
02

Locus standi of the deponent

Holding

Harrison Mutunga Wambua did not disclose the office he held in the Plaintiff and his name was not among the three officials who signed the resolutions, so he had no locus standi to plead on behalf of the Plaintiff

Reasoning

Although the deponent described himself as 'the Plaintiff's registered official', he never stated whether he was Chairman, Treasurer or Secretary, and the annexed resolutions were signed by a Chairperson, Secretary and Treasurer none of whom was him. Without disclosing his position he had no standing.

p. 3
03

Compliance with Order 37 Rule 7 in adverse possession claims

Holding

The annexed copy of the title did not show that the Defendants are the registered proprietors of the suit property, breaching Order 37 Rule 7 and rendering the application unmeritorious

Reasoning

Order 37 Rule 7 requires that an Originating Summons be supported by an affidavit annexing a certified extract of the title to the land in question. The title annexed did not disclose the Defendants as registered proprietors, a fatal defect going to the application's competence.

p. 3
04

Conditions for grant of temporary injunction

Holding

The court recited the Giella v Cassman Brown conditions and related authorities but did not reach them because the application failed on capacity and locus standi grounds

Reasoning

The court set out the well-known requirements of a prima facie case with probability of success, irreparable damage not compensable by damages, and balance of convenience, citing Giella, Mrao and Nguruman, and noted interlocutory relief requires more than an arguable case, but struck out the application before assessing these.

p. 1

Legal principles established

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  • Societies registered under the Societies Act are unincorporated bodies with no legal capacity to sue or be sued in their own names; they can only sue through trustees or officials in a representative capacity
  • An Originating Summons for adverse possession must be supported by an affidavit to which a certified extract of the title to the land in question is annexed (Order 37 Rule 7, Civil Procedure Rules)

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 18th June, 2020 is struck out
  2. 2.No costs of the application (each party to bear own costs - application struck out without costs)

Authorities

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Legislation

  • Societies ActCap 108
  • Civil Procedure RulesOrder 1 rule 8
  • Civil Procedure RulesOrder 37 Rule 7

Cases cited (10)

  • Giella vs. Cassman Brown & Co Ltd
    (1973) EA 358
  • Fellowes and Son vs. Fisher
    [1976] I QB 122
  • Mrao vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Fessenden vs. Higgs and Hill Ltd
    [1935] ALL ER 435
  • Francome vs. Mirror Group Newspapers Ltd.
    [1984] 1 WLR 892
  • American Cynamid vs. Ethicon
    [1975] AC 396
  • NWL Limited vs. Woods
    [1979] WLR 1294
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Eritrea Orthodox Church vs. Wariwax Generation Ltd.
    [2007] eKLR
  • Free Pentecostal Fellowship in Kenya vs. Kenya Commercial Bank
    (1992) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over the suit property L.R. No. 14750/2 (interlocutory application within an Originating Summons for adverse possession)

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, "Hathinge Self Help Group (With a membership of 293 members and suing through its registered officials: James Nzeru Musembi, Daniel Mutinda Ndwiki and Harrison Mutunga Wambua) v Co-operative Bank Housing & another [2021] KEELC 4256 (KLR)", Case Analysis (2021). Notice of Motion dated 18th June, 2020 in Originating Summons dated 18th June, 2020 (Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4256/eng@2021-02-19

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