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ELCDismissedNot stated in the ruling· [2022] KEELC 1409 (KLR)
Shaban Athuman & Alex Furaha Charo (Suing for and on behalf of the Wamwanyundo Clan) v M/S Karsan Ramji & Sons Ltd & 6 others [2022] KEELC 1409 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This ruling by the Environment and Land Court at Malindi (M.A. Odeny, J) determined the 1st Defendant's Notice of Preliminary Objection dated 28th July 2021 seeking dismissal of the Plaintiff's suit. The Plaintiff, Shabani Athumani Maitha, sued for and on behalf of the Wamwanyundo Clan over land parcel Kilifi/Kawala (A) Kadzodzo/399 in the Jimba/Kaliang'ombe Adjudication Scheme. The 1st Defendant objected that the suit was filed without an authority to plead on behalf of the clan as required by Order 1 Rules 8 and 13 of the Civil Procedure Rules, 2010, rendering the Plaint incompetent and an abuse of process. The Defendant relied on Law Society of Kenya v Commissioner of Lands and Alfred Njau v City Council of Nairobi on locus standi. The Plaintiff countered that the omission was a technical error curable under the court's inherent powers under Sections 1A, 1B and 3A of the Civil Procedure Act, relying on Research International East Africa Ltd v Julius Arisi and Hezekia Kipkorir Maritim v Philip Kipkoech Tenai. The court found that although no authority had been filed and capacity to sue goes to the root of the matter, the omission was not fatal because the Plaintiff is himself a member of the clan and could proceed individually. Invoking its inherent discretion, the court gave the Plaintiffs 14 days to file the authority and dismissed the Preliminary Objection as lacking merit.
Key legal issues
#01
Whether failure to file an authority to plead on behalf of a clan is fatal to the suit
Holding
It is not fatal where the plaintiff is himself a member of the clan; the court has discretion to allow the authority to be filed
Reasoning
The court accepted that no authority was filed as required under Order 1 Rules 8 and 13. However, relying on Research International East Africa Ltd v Julius Arisi, the Court of Appeal recognised that a superior court has discretion to make appropriate orders other than striking out, such as granting an opportunity to comply. Since the plaintiff is a member of the clan, he retains individual capacity, so the objection failed.
p. 2
Legal principles established
#- A court has discretion under Section 3A of the Civil Procedure Act to allow a plaintiff to rectify failure to file an authority to plead on behalf of a group, rather than strike out the suit
Court orders
#- 1.The Plaintiffs are given an opportunity to file an authority to plead on behalf of the Wamwanyundo Clan within 14 days from the date of the ruling
- 2.The Preliminary Objection is dismissed for lack of merit
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act (inherent powers); dispute concerning land in Jimba/Kaliang'ombe Adjudication Scheme
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Gatimu (Suing on behalf of Godfrey Gitonga & 58 others being part of the allotees, owners of 104 parcels of land being L.R No. 25821 to 25922 of one-acre each) v Global Holdings Limited & 2 others[2022] KEELC 15379 (KLR)19 Dec 2022
- Gatimu (Suing on behalf of Godfrey Gitonga & 58 others being part of the allotees, owners of 104 parcels of land being L.R No. 25821 to 25922 of one-acre each) v Global Holdings Limited & 2 others[2022] KEELC 15379 (KLR)19 Dec 2022followed
Cite this brief
#Cite this brief
Caselaw, "Shaban Athuman & Alex Furaha Charo (Suing for and on behalf of the Wamwanyundo Clan) v M/S Karsan Ramji & Sons Ltd & 6 others [2022] KEELC 1409 (KLR)", Case Analysis (2022). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1409/eng@2022-02-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.