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)
The bottom line
#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
#Executive summary
#Key legal issues
#Capacity of a registered society to institute proceedings
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
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.
Locus standi of the deponent
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
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.
Compliance with Order 37 Rule 7 in adverse possession claims
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
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.
Conditions for grant of temporary injunction
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
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.
Legal principles established
#- 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
#- 1.The Plaintiff's Notice of Motion dated 18th June, 2020 is struck out
- 2.No costs of the application (each party to bear own costs - application struck out without costs)
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.