Adero & 3 others v Odalo & 3 others
The bottom line
#The Environment and Land Court dismissed a group land claim because the plaintiffs never filed signed written authority from the members they claimed to represent.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit qualifies as a competent representative suit
It does not; the plaintiffs neither gave notice by advertisement nor filed written authority signed by the members on whose behalf they sued, which is fatal.
Order 1 rule 8 permits numerous persons with the same interest to sue through representatives, but rule 13 requires written authority signed by the party giving it and filed. PW2 admitted no authority was signed. The court rejected the Article 159 substantive-justice argument, holding express provisions must be strictly complied with.
Whether the suit is sub judice other pending suits between the same parties
The sub judice plea fails because the defendants did not prove the cited suits (HCCC 467 of 2005, CMCC 10688 of 2006, CMCC 1497 of 2010) are still pending; the plaintiffs said they abated or were dismissed.
Applying the Supreme Court's statement of the sub judice doctrine in the KNCHR case, a party must establish multiple suits over the same subject matter, same parties, before courts with competent jurisdiction, and that both suits are pending. Only pleadings were annexed; no evidence of pendency was adduced.
Whether the original 2000 ballot and allotment list was altered to dispossess about 500 members
Not proved. The list relied on by the plaintiffs belongs to 'Dandora Kangundo Road Squatters Resettlement Project', a different entity from the Self Help Group, and no nexus between the two was established.
None of the allegedly dispossessed members testified; PW3 was a purchaser, not an original allottee, and could have sued his vendor and the current occupant. The defendants tabled evidence that constitutional changes were made by members' resolution. The plaintiffs therefore failed to discharge the burden on a balance of probabilities.
Costs of the suit
Costs awarded to the Defendants as the successful parties, the suit having been dismissed.
Costs follow the event; the plaintiffs' suit was dismissed in its entirety, so the defendants, who sought dismissal with costs, are entitled to them.
Legal principles established
#- A representative suit under Order 1 rule 8 requires written authority signed by each member represented and filed in the suit; failure to comply is fatal.
- Where there are express procedural provisions, they must be complied with strictly notwithstanding Article 159 on technicalities.
- A party invoking the sub judice rule must prove the earlier suits are still pending; mere annexure of pleadings without proof of pendency is insufficient.
- Civil claims are proved on a balance of probabilities; where the tribunal cannot decide which evidence to accept, the party bearing the burden loses.
Court orders
#- 1.The plaintiffs' suit is dismissed with costs to the Defendants.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land within blocks LR No.18271, 18272, 18276 and 18277
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Adero & 3 others v Odalo & 3 others", Case Analysis (2023). Environment & Land Case 366 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21351/eng@2023-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.