Ntutu v County Government of Narok & another (Environment and Land Case 21 of 2021) [2024] KEELC 1327 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that once a party withdraws a suit, it cannot be reinstated — and an estate representative could not act for a company without authority.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 25 Rule 3 of the Civil Procedure Rules empowers the court to reinstate a party/suit after withdrawal
It does not. Withdrawal terminates the suit and there is no right to revoke or reinstate it; the remedy is a fresh suit under Order 25 Rule 4.
The court analysed Order 25 Rule 1, which confers an absolute right to withdraw by notice before setting down for hearing, as happened here. Relying on Bahati Shee Mwafundi, George Mwangi Kinuthia and Priscilla Nyambura Njue, the court held that a notice of withdrawal takes effect immediately and there is no provision conferring a right to revoke the withdrawal or reinstate the suit.
Whether the applicant, as administratrix of a deceased original subscriber, had locus standi to apply for reinstatement of the company
She had no locus standi: no board resolution authorised the application, she did not prove she was a shareholder, and it was not shown the deceased's shares formed part of the estate.
The court held that claims touching a company must be brought in accordance with the Companies Act and the company's Articles of Association. An individual shareholder cannot sue for wrongs done to a company (Foss v Harbottle principle). No resolution of the directors of Ol Kiombo Limited supported the application, and no evidence showed the deceased's shares formed part of the estate, so the administratrix could not act for the company.
Whether the withdrawal was procured by fraud and misrepresentation
The allegations of fraud and misrepresentation were not proved at all.
The applicant asserted that the notice of withdrawal filed by Rachier & Amollo Advocates was without instructions from the directors and shareholders and could only have been done through fraud. The court found no evidence tendered to prove the firm acted without instructions or engaged in wrongdoing, and concluded the fraud allegations were wholly unestablished.
Legal principles established
#- Once a party withdraws its suit, there is no provision permitting reinstatement; the withdrawing party's only option is to institute a fresh action under Order 25 Rule 4
- An individual who is not shown to be a director or shareholder, acting without a board resolution and without proof that deceased shares formed part of the estate, has no locus standi to move the court on behalf of a company
Court orders
#- 1.The notice of motion dated 1st February, 2024 is dismissed
- 2.No orders as to costs
- Jurisdiction invoked
- Inherent jurisdiction of the first-instance court over its own suit; application brought under Order 25 Rule 3 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ntutu v County Government of Narok & another (Environment and Land Case 21 of 2021) [2024] KEELC 1327 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1327/eng@2024-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.