Solai Ruiyobei Farm Ltd v Cherutich & another (Environment and Land Case E052 of 2022) [2024] KEELC 484 (KLR)
The bottom line
#A Kenyan court ruled that a company's right to sue is judged at filing date, so later cancellation of its directors' registration cannot kill an already-filed case.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff had locus standi at institution of the suit given the later cancellation of the CR 12
The plaintiff had locus standi when the suit was filed on 29th September 2022; the later setting aside of the CR 12 on 16th March 2023 cannot act retrospectively to divest that right
The court found it undisputed that at the date of filing the directors had authority per the CR 12. Relying on retrospectivity principles from S K Macharia and the Indian Supreme Court decision, it held that permitting retrospective application would withdraw vested rights. The company, having perpetual succession, could not operate in a vacuum, and the incoming directors may elect to continue the suit.
Whether the suit should be struck out as an abuse of process
No; the application lacked merit and was dismissed, the suit to proceed to hearing on merit
Striking out is draconian and should be done only in plain cases; a suit showing a semblance of a cause of action should go to trial. The court noted this was a second attempt to dismiss the suit after a preliminary objection had been dismissed, and courts should be slow to lock litigants out of the seat of justice.
Legal principles established
#- Locus standi is the right of a party to appear and be heard; a person must have sufficiency of interest to sue
- An order setting aside a CR 12 does not operate retrospectively to divest a right of suit already vested at the time of filing
- Courts should be slow to strike out pleadings; striking out is draconian and reserved for plain cases
- Retrospectivity should not be imported where it would divest rights legitimately acquired
Court orders
#- 1.The Notice of Motion dated 13th June 2023 is dismissed with costs to the Respondent
- 2.The Respondent to ensure compliance with the court order on the election of new directors if not already done
- 3.The matter to be heard and determined on merit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over the suit; application under civil procedure (Order 21 [1] of the Civil Procedure Rules referenced in delivery note)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Solai Ruiyobei Farm Ltd v Cherutich & another (Environment and Land Case E052 of 2022) [2024] KEELC 484 (KLR)", Case Analysis (2024). ELC Case (Nakuru), Notice of Motion dated 13th June 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/484/eng@2024-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.