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ELCStruck OutNot stated in judgment· [2022] KEELC 40 (KLR)

Mbugua v Mathara Holdings Limited & another (Environment & Land Case E072 of 2021) [2022] KEELC 40 (KLR)

Environment and Land Court
9 May 2022
BEB M Eboso
2,154 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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The court disposed of two applications: the plaintiff's notice of motion dated 19/7/2021 seeking injunctive relief restraining the 1st and 2nd defendants from denying him and his family access through L.R Nos 14274/7/1, 14274/8/1 and 14274/9/1, which he alleged comprised a public road of access, and compelling removal of a barrier on L.R 14274/7/1; and the 1st defendant's notice of motion dated 9/11/2021 seeking striking out of the suit for want of locus standi. The court heard the striking-out application first. The plaintiff's case was that Plot 'B', allotted to his late mother Jane Wambui Mbugua, was served by the alleged public road, and that the defendants had barred vehicular access. The 1st defendant contended the plaintiff was suing on behalf of Johnson Mbugua Mugo and the estate of Jane Wambui Mbugua without authority: the jointly-held power of attorney did not permit him to act alone, and his limited grant of letters of administration only authorized him to act in two specified other cases. The court, citing Fremar Construction Company Ltd v Minakash N Shah on the caution required in exercising the drastic striking-out jurisdiction, found the plaintiff lacked locus standi on both bases. The suit was struck out as fatally and irredeemably defective; the plaintiff's application of 19/7/2021 fell with it. The plaintiff was ordered to bear the costs of the suit and both applications. Judgment delivered virtually at Thika on 9 May 2022 by B M Eboso, Judge.

Key legal issues

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01

Whether the plaintiff had locus standi to sue on behalf of the estate of Jane Wambui Mbugua

Holding

He did not; his limited grant restricted him to specified other proceedings and did not authorize this suit.

Reasoning

The plaintiff pleaded he was personal representative of the deceased, but the grant of letters of administration relied on was limited to prosecuting or defending Nairobi High Court Commercial Case No. 008 of 2020 and Court of Appeal Civil Appeal No E 288 of 2020. Where one sues on behalf of a deceased person, an appropriate grant must first be obtained. Filing without such a grant renders the suit fatally and irredeemably defective.

p. 4
02

Whether the plaintiff could sue on behalf of Johnson Mbugua Mugo and J M Mugo Investments Company Limited

Holding

No; the company must sue in its own name, and the joint power of attorney did not authorize the plaintiff to act alone.

Reasoning

A limited liability company is a distinct legal entity with power to sue in its own name over rights appurtenant to its property; it does not sue through shareholders or their children. Additionally, the power of attorney was donated to three donees jointly, and its authority had to be exercised jointly, so the plaintiff could not institute suit solely on behalf of Johnson Mbugua Mugo.

p. 4

Legal principles established

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  • A person suing on behalf of a deceased person must first obtain an appropriate grant of representation; a suit filed without one is fatally defective.
  • A limited liability company sues in its own name, not through its shareholders or children of shareholders.
  • Jurisdiction to strike out pleadings is drastic and must be exercised with great caution and only in clear cases.

Court orders

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  1. 1.The plaintiff's suit is struck out on the ground that the plaintiff did not have the requisite locus standi to initiate the suit
  2. 2.The plaintiff's application dated 19/7/2021 stands struck out alongside the suit
  3. 3.The plaintiff to bear costs of the suit and the two applications

Authorities

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Legislation

  • Land Registration ActSection 28

Cases cited (1)

  • Fremar Construction Company Ltd v Minakash N Shah
    Nairobi CA Civil Appeal No 85 of 2002
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land matters; jurisdiction to strike out suits under the court rules

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, "Mbugua v Mathara Holdings Limited & another (Environment & Land Case E072 of 2021) [2022] KEELC 40 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/40/eng@2022-05-09

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