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ELCStruck OutPetition dated January 23, 2023 (not otherwise stated)· [2023] KEELC 678 (KLR)

Awino & another v Mburu & 10 others (Environment & Land Petition 004 of 2023) [2023] KEELC 678 (KLR)

Environment and Land Court
9 February 2023
OMOguttu Mboya
7,061 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court struck out a petition over company elections, ruling the petitioners lacked standing and the court lacked jurisdiction over internal company disputes.

What this practically means

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Executive summary

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The Petitioners filed a petition and Notice of Motion dated January 23, 2023 seeking extensive reliefs concerning the affairs of Githunguri Coffee Growers Company Limited (GCRC), a land buying company: production of its memorandum and articles of association and members' register, reconstitution of the register, convening a general meeting, court-supervised board elections, prohibition of dealings affecting title to land, and a stay of sales, leases or charges of company assets pending elections. They purported to act for one Wilson Njuguna Kinuthia, allegedly unable to act for himself, under Article 258(2)(a) of the Constitution. At a hearing on February 8, 2023, the court raised the question of its jurisdiction and directed the parties to address it. Oguttu Mboya J framed three issues: locus standi, jurisdiction and abuse of process. On locus standi, the court held that the Petitioners produced no medical evidence of Kinuthia's incapacity, no evidence of any affinity, nexus or relationship with him, and no written authority, and were not pursuing genuine public interest litigation; they were 'Busybodies'. On jurisdiction, the court held that the reliefs concerned the internal management, membership and directorship of a limited liability company, falling outside the mandate conferred by Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. On abuse of process, the court noted the Petitioners' admission of a multiplicity of suits on the same subject matter and a pending High Court suit, and found the petition mounted for an undisclosed ulterior purpose. The Petition and the attendant Notice of Motion were struck out with costs to the 1st, 3rd, 5th and 7th Respondents.

Key legal issues

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01

Locus standi of the Petitioners to sue on behalf of Wilson Njuguna Kinuthia

Holding

The Petitioners lacked locus standi as they produced no evidence of the alleged person's incapacity, no affinity or nexus with him, and no written authority, and were not pursuing genuine public interest litigation

Reasoning

The Petitioners claimed to act for Wilson Njuguna Kinuthia under Article 258(2)(a) but produced no medical evidence of incapacity, no proof of relationship, and no written authority from him. The Court of Appeal's decision in Mumo Matemu shows that despite relaxed standing rules, a petitioner must display some affinity or nexus and act bona fide. The court found the Petition driven by mala fides and held the Petitioners were busybodies.

p. 8
02

Jurisdiction of the Environment and Land Court over internal company management disputes

Holding

The court lacked jurisdiction because the reliefs concerned the internal affairs, register of members, directorship and elections of a limited liability company, not environment and land disputes

Reasoning

Article 162(2)(b) and Section 13(2) of the ELC Act confine the court to environment and land disputes, including title, tenure and land administration. Although the 7th Respondent is a land buying company, the reliefs sought concern company membership registers, AGMs and board elections, which fall outside the court's mandate. Following Samuel K. Macharia and Owners of the Motor Vessel 'Lillian S', a court without jurisdiction must strike out the proceedings and down its tools.

p. 10
03

Abuse of the due process of the court

Holding

The Petition was an abuse of process, being a multiplicity of suits on the same subject matter mounted for an ulterior purpose

Reasoning

The Petitioners admitted a multiplicity of suits over the same subject of credible board elections from an authentic register, and a related suit was pending before the High Court. They had no personal claim, no authority to act for Kinuthia, and no genuine public interest. Applying Satya Bharma Gandhi and Muchanga Investments, the court found the process misused for undisclosed ulterior or collateral benefit.

p. 15

Legal principles established

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  • A court's jurisdiction flows from the Constitution or legislation, and without jurisdiction it must down its tools
  • Jurisdiction is everything; a court without jurisdiction cannot take one more step
  • Proceedings before a court without jurisdiction are a nullity ab initio
  • Even under the liberalized locus standi regime of Articles 22 and 258, a petitioner must show some affinity, nexus or authority to act for another person
  • Where an internal dispute resolution mechanism exists, it must be exhausted before invoking the jurisdiction of the courts
  • Instituting a multiplicity of actions on the same subject matter constitutes abuse of court process

Court orders

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  1. 1.The Petition dated January 23, 2023 together with the attendant Notice of Motion Application of even date struck out
  2. 2.Costs to the 1st, 3rd, 5th and 7th Respondents

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 258(2)(a)
  • Constitution of Kenya, 2010Articles 22 and 258
  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 159
  • Environment and Land Court Act, 2011Section 13
  • Access to Information Act, 2016Section 6
  • Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013Legal Notice No 117 of 28th June 2013

Cases cited (11)

  • S K Macharia v Kenya Commercial Bank Ltd
    (2012) eKLR
  • Mumo Matemu versus Trusted Society of Human Rights Alliance & 5 others
    [2013] eKLR
  • Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd
    1989 KLR 1
  • Phoenix of EA Assurance Company Limited versus SM Thiga t/a Newspaper Service
    [2019] eKLR
  • Okiya Omtata Okoiti versus The Attorney General
    (2020) eKLR
  • Njonjo Mue & Another vs Chairperson of Independent Electoral and Boundaries Commission & 3 Others
    [2017] eKLR
  • Geoffrey Muthinja Kabiro versus Samuel Muguna Henry
    (2015) eKLR
  • Satya Bharma Gandhi versus The Director of Public prosecution & Others
    (2019) eKLR
  • Muchanga Investment Limited versus Safaris Unlimited (Africa) Limited
    (2009) eKLR
  • In the Matter of the Interim Independent Electoral Commission
    Constitutional Application Number 2 of 2011
  • In the Matter of Advisory Opinions of the Supreme Court under Article 163(3) of the Constitution
    Constitutional Application No 2 of 2011
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Awino & another v Mburu & 10 others (Environment & Land Petition 004 of 2023) [2023] KEELC 678 (KLR)", Case Analysis (2023). Petition dated January 23, 2023 (not otherwise stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/678/eng@2023-02-09

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