Seventh Day Adventist (E. A) Limited v Child Welfare Society of Kenya & 4 others [2022] KEELC 1739 (KLR)
The bottom line
#A Kenyan court struck out a land suit because the company suing had no board resolution authorising it, and the same dispute had already been decided.
What this practically means
#Executive summary
#Key legal issues
#Locus standi of a company suing without Board authorization
The Plaintiff, a limited liability company, lacked locus standi because Tom K. Miyienda did not disclose authority to swear the verifying and replying affidavits and no company resolution sanctioning the suit was exhibited.
Order 4 Rule 4 of the Civil Procedure Rules requires that a verifying affidavit be sworn by an officer authorized by the company. Following Kenya Commercial Bank Ltd v Stage Coach Management Ltd and the Affordable Homes Africa line of authority, a company can act only through its organs, and absent a Board resolution sanctioning the suit, the company is not before the court. The action must therefore be struck out.
Whether the suit is res judicata under Section 7 of the Civil Procedure Act
The suit is res judicata because the subject matter (the alleged unsurveyed plot and allotment to Millennium SDA Church) was directly and substantially in issue and conclusively determined in Kisii ELC Case No. 220 of 2017 and Civil Appeal No. 152 of 2019.
This court and the Court of Appeal had already found that no unsurveyed plot abutted the 1st Defendant's land and no PDP identified it. The claim of newly discovered evidence (the 2018 lease over Block III/649) could not create a new cause of action since the unsurveyed plot was held not to exist. Adding new parties does not sanitize the suit.
Whether adding different parties defeats res judicata
No. Litigants cannot metamorphose into new parties or add others to circumvent the doctrine of res judicata.
The court adopted Diocese of Eldoret Trustees v Attorney General and E.T v Attorney General, quoting Omondi v National Bank of Kenya and Kuloba J in Njangu v Wambugu, to hold that changing or adding parties with a 'cosmetic fact lift' does not evade res judicata where the issues were conclusively determined between the same parties or their proxies.
Legal principles established
#- A company must sanction the commencement of litigation through a Board resolution; without one the company is not properly before the court.
- Introducing new parties or causes of action does not circumvent res judicata.
- The five elements of res judicata under Section 7 of the Civil Procedure Act must be satisfied conjunctively.
Court orders
#- 1.The Preliminary Objection by the 4th Defendant is upheld
- 2.The application by the 1st Defendant dated 18th May, 2021 is allowed
- 3.The Plaintiff's suit together with all pleadings, including the Notice of Motion seeking injunctive orders, is struck out
- 4.Costs of the suit are awarded to the 1st and 4th Defendants
- Jurisdiction invoked
- Articles 159 and 162(2)(b) of the Constitution read with the Environment and Land Court Act (not expressly stated in the judgment; court determined a Preliminary Objection and Notice of Motion in an ELC suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Seventh Day Adventist (E. A) Limited v Child Welfare Society of Kenya & 4 others [2022] KEELC 1739 (KLR)", Case Analysis (2022). ELC Case (Kisii) – suit dated 21st March, 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1739/eng@2022-02-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.