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ELCStruck OutEnvironment & Land Case E032 of 2021 (Formerly Narok ELC Case 466 of 2017)· [2023] KEELC 15897 (KLR)

Ole Unua Tonkei & 2 others (Suing on their own behalf & on behalf of Inkoirero Self Help Group) v Kilusu & another

Environment and Land Court
6 March 2023
2,090 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court struck out a land suit because the self-help group it was filed for had no legal capacity to sue, and the plaintiffs proved no member authority.

What this practically means

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Executive summary

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The 1st defendant, David Leoo Kilusu, filed a Notice of Preliminary Objection dated October 31, 2022 seeking the striking out of the plaintiffs' suit (filed as Narok ELC Case 466 of 2017 and transferred to Kilgoris as ELC E032 of 2021) on four grounds: that Inkoirero Self Help Group, on whose behalf the plaintiffs sued, was unregistered and unlawful; that as an unincorporated body it lacked capacity to own land; that sections 18 and 19 of the Land Registration Act ousted the court's jurisdiction; and that the plaintiffs failed to comply with Order 1 Rule 8(2) of the Civil Procedure Rules on representative suits. The objection was canvassed by written submissions. The court, applying Mukhisa Biscuits, framed four issues. On the first issue, the respondents produced a Certificate of Registration showing the group was registered on March 31, 2004, which disposed of the registration contention. However, applying Phares Omondi Okech and Kipsiwo Community Self Help Group, the court held that a self-help group, though registered, lacks capacity to sue or be sued in its own name, and that a representative suit requires disclosed officials and demonstrable mandate from members. The plaintiffs' own documents contained no membership list, no minutes and no authority to institute the suit. The court accordingly found the plaintiffs lacked capacity, and declined to determine the remaining issues as academic. The preliminary objection was upheld, the amended amended plaint dated May 24, 2017 was struck out forthwith, and the plaintiffs were ordered to bear the costs of the suit and of the preliminary objection.

Key legal issues

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01

Whether Inkoirero Self Help Group is legally registered and capable of suing/being sued

Holding

The group is duly registered (certificate dated August 6, 2020 showing registration on March 31, 2004), but as a self-help group it lacks capacity to sue or be sued in its own name.

Reasoning

The respondents produced a Certificate of Registration showing the group was registered under the Ministry of Labour and Social Protection, resolving the registration question. However, following Phares Omondi Okech, self-help groups are not clothed with capacity to sue; suits must be brought through elected officials whose identity and mandate are disclosed. The court found the group registered but without suo motu capacity.

p. 3
02

Whether the plaintiffs had authority to institute the suit in a representative capacity

Holding

The plaintiffs had no capacity to file the suit on behalf of the group: no membership list, no minutes resolving to sue, and no authority from members were attached.

Reasoning

Following Kipsiwo Community Self Help Group, a person bringing a representative action must demonstrate permission or mandate from the members represented. The respondents' own bundle of documents contained no list of members, no minutes authorizing the suit and no authority to institute it. The court therefore held the plaintiffs lacked representative capacity, rendering the suit incompetent.

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Whether remaining issues (land ownership capacity, ss 18 & 19 LRA, Order 1 Rule 8(2)) required determination

Holding

No - once the failure of capacity was found, determination of the other issues would be academic.

Reasoning

The court framed issues 2 to 4 as dependent on the success of issue 1. Having found the plaintiffs lacked capacity to institute the suit, there was no competent suit left, so the questions of ownership capacity, the Land Registration Act provisions and Order 1 Rule 8(2) fell away without determination.

p. 5

Legal principles established

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  • A self-help group, though duly registered, does not itself have capacity to sue or be sued; suits on its behalf must be brought by officials with disclosed mandate and authority from members.
  • Lack of representative capacity cannot be cured by Article 159 of the Constitution or the oxygen principle.

Court orders

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  1. 1.The preliminary objection dated October 31, 2022 is merited.
  2. 2.The amended amended plaint dated May 24, 2017 be and is hereby struck out forthwith.
  3. 3.The plaintiffs shall bear the costs of the suit as well as this preliminary objection.

Authorities

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Legislation

  • Land Registration ActSections 18 and 19
  • Civil Procedure Rules, 2010Order 1 Rule 8(2)
  • Societies ActSection 4
  • Constitution of Kenya, 2010Article 159; Article 260

Cases cited (4)

  • Mukhisa Biscuits Manufacturing Co. Limited v West End Distributors Ltd
    (1969) EA 696

    Definition and limits of a preliminary objection - a pure point of law on assumed pleaded facts

  • Daniel K.Yego & 3 others v Paulina Nekesa Kode
    (2016) eKLR

    Locus standi of unregistered groups

  • Phares Omondi Okech & 3 others (Suing for and on behalf of Kasgan Community-wadhari Clan) v Victory Constructions Co. Ltd & 2 others
    (2015) eKLR

    Unincorporated bodies can appear through persons vested with legal capacity; self-help groups lack capacity to sue except through elected officials with disclosed mandate

  • Kipsiwo Community Self Help Group v The Attorney General & 6 others
    (2013) eKLR

    A representative plaintiff must demonstrate permission/mandate from the members represented

Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - jurisdiction over environment and land disputes

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ole Unua Tonkei & 2 others (Suing on their own behalf & on behalf of Inkoirero Self Help Group) v Kilusu & another", Case Analysis (2023). Environment & Land Case E032 of 2021 (Formerly Narok ELC Case 466 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15897/eng@2023-03-06

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