Soita (Suing as a Representative of the Estate of Peter Soita Shitanda - Deceased) v Malumasi & 2 others
The bottom line
#Kenya's Environment and Land Court dismissed a landowner's attempt to derail a land dispute case, confirming companies can sue without board resolutions.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC has jurisdiction over a dispute said to be commercial/company-related
The court has jurisdiction; the pleadings disclose land disputes (trespass, ownership, eviction) within section 13(1) of the ELC Act, not shareholding or company-affairs disputes
The court examined the plaint and counterclaim and found the reliefs sought fall within section 13(1),(2),(7) of the ELC Act. No dispute on shareholding, lifting the corporate veil, winding up or voting rights appears in the pleadings; those were only alluded to in submissions. A prior ruling of 7th July 2022 had rejected the same objection, making it res judicata.
Whether a resolution is required for a company to file suit, swear affidavits or instruct advocates
No resolution is required; a director authorised to act for the company may do so unless the contrary is shown
Relying on the Court of Appeal in Arthi Highway Developers v West End Butchery, which traced the Bugerere Coffee Growers rule and its overruling in Uganda, the court held that the surviving director's verifying affidavit deposing authority sufficed. The plaintiff, neither director nor member, lacked capacity to challenge it.
Whether section 10 of the Arbitration Act bars the court's jurisdiction
No; the plaintiff never invoked section 6 at entry of appearance and cannot object to her own suit
The court applied Court of Appeal authority (Eunice Soko Mlagui; Charles Njogu Lofty) that a party desiring arbitration must apply for stay at the time of entering appearance or before filing defence. No such application existed, pleadings had closed, and the plaintiff herself instituted the suit.
Compliance with rule 65 of the Land Regulations 2017
Ground fails; no such legislation exists and the actual Regulation 65 is irrelevant to the dispute
The court found no statute called Land Regulations 2017; the Land Registration (General) Regulations 2017 exist, and Regulation 65 deals with registration of dispositions in favour of trustees incorporated under the Trustees (Perpetual Succession) Act, which has no bearing on this matter. Counsel did not submit on the ground.
Legal principles established
#- A company need not produce a board resolution authorising filing of a suit, swearing an affidavit or instructing an advocate; it suffices for the deponent to state authority, and a director authorised to act has the powers of the board
- An objection based on an arbitral clause cannot oust the court's jurisdiction where no section 6 application was made at the time of entering appearance
- A party who filed a suit cannot raise a preliminary objection to her own suit's jurisdiction
Court orders
#- 1.The Notice of Preliminary Objection dated 4th February 2023 is dismissed
- 2.Costs of the objection awarded to the defendants
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Soita (Suing as a Representative of the Estate of Peter Soita Shitanda - Deceased) v Malumasi & 2 others", Case Analysis (2023). Environment & Land Case 4 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21106/eng@2023-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.