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ELCDismissedNot stated in the judgment· [2024] KEELC 1255 (KLR)

Olkeju Ronkai Limited v County Government of Narok (Environment and Land Case E012 of 2022) [2024] KEELC 1255 (KLR)

High Court of Kenya
7 March 2024
MCMbogo C.G.
1,516 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court ruled that a company can still validly sue even without filing its board resolution upfront, as long as it fixes the gap before the hearing.

What this practically means

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Executive summary

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The defendant filed a notice of preliminary objection dated 16th November, 2023 seeking dismissal or striking out of the plaintiff company's suit on the grounds that it was instituted without an authority to sue or a valid company resolution, and that the verifying affidavit sworn by Tom Ole Kamwaro offended Order 4 Rule 1(4) of the Civil Procedure Rules, 2010, which requires a corporation's verifying affidavit to be sworn by an officer duly authorized under the seal of the company. The objection was canvassed by written submissions; the defendant relied chiefly on KCB v Stage Coach Management, Affordable Homes Africa v Ian Henderson and East African Portland Cement v Capital Markets Authority, and claimed costs under Section 27 of the Civil Procedure Act. The plaintiff filed no submissions. The court restated the Mukisa Biscuits definition of a preliminary objection, holding that it must raise a pure point of law on pleaded facts, drawing also on Quick Enterprises, Avtar Singh Bhamra and Oraro v Mbaja. Accepting that the objection raised a pure point of law on Order 4 Rule 1(4), the court nevertheless followed Aburili J in Livestock Research Organization v Okoko and Faith & Hope Properties, holding that there is no requirement that the authorization or company resolution be filed with the plaint, and such a resolution may be filed any time before the suit is fixed for hearing; its absence is not fatal. Emphasizing substantive justice and that the suit was not yet set down for hearing, the court found room for the plaintiff to regularize. The preliminary objection was dismissed with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the suit is fatally defective for want of an authority/resolution authorizing the plaintiff company to sue and for a verifying affidavit allegedly offending Order 4 Rule 1(4) of the Civil Procedure Rules

Holding

The preliminary objection fails; the absence of a filed company resolution or authorization at filing does not invalidate the suit and the deficiency may be cured before hearing.

Reasoning

Applying the Mukisa Biscuits definition, the court accepted the objection raised a pure point of law on Order 4 Rule 1(4). However, relying on Aburili J in Livestock Research Organization v Okoko and Faith & Hope Properties, the court held that there is no requirement that the authority be filed with the plaint, and a resolution may be filed any time before the suit is fixed for hearing. Guided by substantive justice and the fact that the suit is yet to be set down for hearing, the court found room for the plaintiff to regularize.

p. 4

Legal principles established

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  • A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised where facts have to be ascertained or judicial discretion exercised.
  • Failure to file a corporation's resolution or authorization with the plaint does not invalidate the suit; such a resolution may be filed any time before the suit is fixed for hearing.

Court orders

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  1. 1.The notice of preliminary objection dated 16th November, 2023 is dismissed
  2. 2.Costs to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 4 Rule 1(4)
  • Civil Procedure ActSection 27

Cases cited (10)

  • Kenya Commercial Bank Limited versus Stage Coach Management Limited
    [2014] eKLR
  • Affordable Homes Africa Limited versus Ian Henderson & Others
    HCCC No. 524 of 2004
  • East African Portland Cement Limited versus Capital Markets Authority & 4 Others
    [2014] eKLR
  • Mukisa Biscuits Manufacturing Co. Ltd versus West End Distributors Ltd
    (1969) EA 696
  • Quick Enterprises Ltd versus Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Avtar Singh Bhamra & Another versus Oriental Commercial Bank
    Kisumu HCCC No.53 of 2004
  • Oraro versus Mbaja
    (2005) 1 KLR 141
  • Livestock Research Organization v Okoko & another
    (Civil Appeal 36 A of 2021) [2022] KEHC 3302 (KLR)
  • Republic v Registrar General and 13 Others
    Misc. Application No. 67 of 2005 [2005] eKLR
  • Faith & Hope Properties Kenya Ltd v James Muchiri Waweru & another
    [2021] eKLR
Jurisdiction invoked
Inherent first-instance jurisdiction under the Civil Procedure Act and Civil Procedure Rules, 2010 (Order 4 Rule 1(4) in issue)

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, "Olkeju Ronkai Limited v County Government of Narok (Environment and Land Case E012 of 2022) [2024] KEELC 1255 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1255/eng@2024-03-07

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