Savala & another v Ndanyi (Environment and Land Case Civil Suit 248 of 2021) [2022] KEELC 2536 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a suit filed on a man's behalf because his co-plaintiff had no written, signed, filed authority to sue for him.
What this practically means
#Executive summary
#Key legal issues
#Compliance with Order 1 Rule 13 and Order 4 Rule 1(3) where one of several plaintiffs sues for others
The suit filed by and/or on behalf of the 1st Plaintiff was fatally incompetent because no written, signed and filed authority existed authorising the 2nd Plaintiff to act for or swear the verifying affidavit on his behalf
Order 1 Rule 13(2) requires the authority to be in writing, signed by the party giving it, and filed in the case; Order 4 Rule 1(3) permits one of several plaintiffs to swear the verifying affidavit only with written authority filed with it. The 1st Plaintiff executed and signed no such authority, so the verifying affidavit sworn by Edwin Amulele Ndanyi was filed without authority, rendering the suit as against the 1st Plaintiff fatally incompetent.
Whether the Court's discretion could spare the defective plaint
Although the Court had a discretion to grant an opportunity to regularise instead of striking out, on the facts the suit by and/or on behalf of the 1st Plaintiff was struck out while the suit by the 2nd Plaintiff against the Defendant was left to proceed
The Court acknowledged that instead of striking out the plaint it could make other appropriate orders, such as allowing the plaintiff an opportunity to comply. However, because the 1st Plaintiff himself disowned the suit and sought removal, the Court struck out the claims by and/or on behalf of the 1st Plaintiff, and directed that the remaining suit by the 2nd Plaintiff against the Defendant be heard within 180 days.
Costs of the application and struck-out claims
Costs follow the event under Section 27(1) of the Civil Procedure Act; since the application succeeded, costs of the struck-out claims were awarded to the 1st Plaintiff/Applicant and the Defendant
The Court treated costs as discretionary and following the event. The event favoured the 1st Plaintiff/Applicant, whose application merited allowance, and the Defendant, who participated in opposing the incompetent joinder of the 1st Plaintiff. Costs of the struck-out claims were therefore awarded to both.
Legal principles established
#- Where there are several plaintiffs, one plaintiff may only swear a verifying affidavit or otherwise act for the others under a written authority, signed by the party giving it and filed in the case; absence of such authority renders the suit filed on behalf of that plaintiff incompetent
- A statement in an affidavit that one has the authority of co-plaintiffs is not enough; the written authority must be filed in the proceeding
Court orders
#- 1.Notice of Motion application dated 7th February 2022 allowed
- 2.The suit instituted by the 2nd Plaintiff enjoining the 1st Plaintiff found to be incompetent, premature and legally untenable, and the suit by and/or on behalf of the 1st Plaintiff struck out
- 3.The suit by the 2nd Plaintiff against the Defendant to be heard and determined within the next 180 days, with mention on 28th September 2022 for pre-trial conference under Order 11
- 4.Costs of the struck-out claims awarded to the 1st Plaintiff/Applicant and the Defendant
- Jurisdiction invoked
- Order 1 Rule 2, Order 50 Rule 1 of the Civil Procedure Rules, 2010 and Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Savala & another v Ndanyi (Environment and Land Case Civil Suit 248 of 2021) [2022] KEELC 2536 (KLR)", Case Analysis (2022). ELC Case of 2021 (Mombasa) — Notice of Motion dated 7th February 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2536/eng@2022-07-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.