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ELCStruck OutApplication dated 15/10/2021 (ELC, Kitale) — suit over LR No. 2143/1 and 2143/5 Lumboka Farm· [2022] KEELC 1123 (KLR)

Chrisptopher Mutiembu Machimbo & 3 others v County Surveyor, Trans-Nzoia & 4 others [2022] KEELC 1123 (KLR)

Environment and Land Court
3 March 2022
FNFRED NYAGAKA
3,432 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The court struck out a land dispute suit because the people who filed it did not legally represent the company that owned the land.

What this practically means

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Executive summary

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The plaintiffs, describing themselves as farm committee members of Lumboka Farm, moved the Environment and Land Court at Kitale under Sections 1A, 1B, 3 and 63(e) of the Civil Procedure Act and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules seeking a temporary interlocutory injunction to restrain the defendants from re-surveying, sub-dividing or interfering with LR No. 2143/1 and 2143/5 - Lumboka Farm. They asserted that the land had been surveyed in 2000, subdivision approved, and titles processing underway, and that any re-survey was illegal and would cause chaos. The 5th defendant, a director of Lumboka Estate Limited, opposed, contending the company owned the land and the plaintiffs, being neither directors nor authorized representatives, lacked locus standi. The court treated locus standi as a threshold point of law, guided by Mukisa Biscuits and Oraro v Mbaja on preliminary objections and by Salomon, Foss v Harbottle and Amin Akberali Manji on corporate personality and the proper plaintiff principle. It found the suit land belonged to an incorporated company that alone could sue; the plaintiffs had no written authorization; and a company exists until wound up, rejecting the functus officio argument. The suit and the application dated 15/10/2021 were struck out, with costs to the plaintiffs.

Key legal issues

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01

Whether the plaintiffs had locus standi to sue over land owned by Lumboka Estate Limited

Holding

They did not; the land belonged to an incorporated company which alone had capacity to sue

Reasoning

The court found from the pleadings that the suit land belonged to Lumboka Estate Limited, a separate juristic person. Applying Salomon and the rule in Foss v Harbottle, the proper plaintiff for a wrong to the company is the company itself. The plaintiffs, claiming to be farm committee members, had no written authorization from directors; Order 4 Rule 4 requires verification by a duly authorized officer.

p. 4
02

Whether the Company had ceased to exist because its objects were fulfilled

Holding

No; a company ceases to exist only upon winding up, and there was no evidence of winding up

Reasoning

The plaintiffs argued the Company became functus officio after distributing land. The court rejected this, holding that corporate existence ends only through winding up. Since Lumboka Estate Limited remained in existence as an independent legal entity separate from its owners, the plaintiffs' contention failed.

p. 4
03

Whether the preliminary point of law on locus standi could be determined first

Holding

Yes; locus standi is a point of law determinable before any other issue

Reasoning

Since the defendants challenged the plaintiffs' capacity to sue, the court framed locus standi as the threshold question, noting its determination controls the direction of both the application and the suit.

p. 3

Legal principles established

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  • A limited liability company is a separate legal person which alone may sue in respect of wrongs done to it; members without authorization lack locus standi
  • A company ceases to exist only upon winding up, not upon completion of its objects

Court orders

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  1. 1.The Defendants' objection on locus standi is allowed and the suit is struck out
  2. 2.The Application dated 15/10/2021 is struck out
  3. 3.The Plaintiffs shall bear the costs of the suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 63(e)
  • Civil Procedure RulesOrder 40 Rules 1, 2, 3
  • Civil Procedure RulesOrder 4 Rule 4

Cases cited (12)

  • Mukisa Biscuits Manufacturing Ltd. v West End Distributors Ltd
    Civil Appeal No. 9 of 1969 (1969) EA 696
  • Oraro v Mbaja
    [2005] 1 KLR 141
  • Law Society of Kenya v Commissioner of Lands & Others
    Nakuru High Court Civil Case No. 464 of 2000
  • Alfred Njau and Others v City Council of Nairobi
    [1982] KAR 229
  • Salomon v A Salomon & Co Ltd
    [1896] UKHL 1, [1897] AC 22
  • Amin Akberali Manji & 2 others v Altaf Abdulrasul Dadani & another
    [2015] eKLR
  • Foss vs. Harbottle
    [1843] 67 ER 189
  • Edwards vs. Halliwell
    [1950] All ER 1064
  • Rai and Others vs. Rai and Others
    [2002] 2 EA 537
  • Grace Wanjiru Munyinyi & Another vs. Gedion Waweru Githunguri & 5 others
    [2011] eKLR
  • Arthi Highway Developers Ltd vs. Westend Butchery Ltd & 6 Others
    Civil Appeal No. 246 of 2013
  • Moir vs. Wallerstainer
    [1975] 1 All ER 849
Jurisdiction invoked
Environment and Land Court jurisdiction under Section 1A, 1B, 3 and 63(e) of the Civil Procedure Act and Order 40 Rules 1, 2, 3 of the Civil Procedure Rules (injunction application)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Chrisptopher Mutiembu Machimbo & 3 others v County Surveyor, Trans-Nzoia & 4 others [2022] KEELC 1123 (KLR)", Case Analysis (2022). Application dated 15/10/2021 (ELC, Kitale) — suit over LR No. 2143/1 and 2143/5 Lumboka Farm. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1123/eng@2022-03-03

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