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ELCDismissed(Not stated in judgment)· [2024] KEELC 3383 (KLR)

Nyamaru & another (Suing as the Representative of the Estate of the Late Gitau Kilonda alias Gitau Kironda) v Gathecha & 8 others (Environment & Land Case 187 of 2018) [2024] KEELC 3383 (KLR)

Environment and Land Court
18 April 2024
989 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court refused to strike out a land fraud suit, confirming that missing parties and time limits raised late won't kill a case before trial.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nairobi (Lucy N. Mbugua, J) determined a Notice of Motion dated 21.11.2023 by the 1st Defendant seeking to strike out the Plaintiffs' suit filed on 19.4.2018 concerning plots of the dissolved Githurai Ting'ang'a Company Limited, a land buying company incorporated in 1967 of which the 1st Defendant was chairman and director until its dissolution in 2009. He argued the suit was statute barred (cause of action arising in 1988), disclosed no reasonable cause of action, was bad for non-joinder of parties, and offended the Companies Act and the Salomon Principle since the Plaintiffs should have petitioned to restore the dissolved company and sought leave before suing him as chairman/director. The Plaintiffs opposed, explaining that the company was originally sued as 2nd Defendant but was removed from the plaint after a preliminary objection, and that the claim is grounded in fraud, defeating any limitation plea. The court dismissed the application on all grounds: non-joinder cannot defeat a suit under Order 1 Rule 9 of the Civil Procedure Rules; the amended plaint pleads fraudulent acquisition rather than suing the 1st Defendant as company officer; limitation was neither ascertainable from the plaint nor pleaded in the defence; and condemning the Plaintiffs on untested witness statements would breach the Article 50(1) right to a fair hearing. The application was dismissed with costs to the Plaintiff, with parties urged to focus on the main suit.

Key legal issues

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01

Non-joinder of parties

Holding

Non-joinder is not a ground for striking out a suit

Reasoning

Order 1 Rule 9 of the Civil Procedure Rules provides that a suit cannot be defeated by misjoinder or non-joinder of parties, as reinforced by the William Kiprono Towett authority. The ground therefore fails.

p. 2
02

Salomon Principle / separate legal entity

Holding

The ground fails because the amended plaint does not sue the 1st Defendant as chairman of the dissolved company; what is pleaded is fraud in acquisition of the leases

Reasoning

The doctrine of separate legal personality does not assist the 1st Defendant because the Plaintiffs' pleaded case, at paragraph 23 of the amended plaint, alleges that the 3rd to 9th Defendants acquired the leases and subdivision approval fraudulently in cahoots with the 1st and 2nd Defendants, not that he is being sued as a director.

p. 2
03

Limitation of actions

Holding

The suit is not shown to be statute barred; limitation was not pleaded in the defence and the cause of action cannot be ascertained as 1988 from the plaint

Reasoning

The plaint pleads that the Plaintiffs learnt of fraudulent subdivisions and registration; the alleged 1988 cause of action is not ascertainable from the plaint, and the 1st Defendant never raised limitation in his defence filed on 11.2.2021, so the ground cannot succeed on an application.

p. 2
04

Right to be heard / fair hearing

Holding

Dismissing the suit based on untested witness statements would violate the right to a fair hearing under Article 50(1)

Reasoning

Article 50(1) guarantees every person a fair hearing. The 1st Defendant, by relying on untested witness statements, was prosecuting the case on the platform of an application; he will have the opportunity to test the statements at trial and should be patient with the process.

p. 3

Legal principles established

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  • A suit cannot be defeated due to misjoinder or non-joinder of parties (Order 1 Rule 9 Civil Procedure Rules)
  • A party must not be condemned unheard; interlocutory dismissal based on untested witness statements is improper
  • A limitation defence must be pleaded in the party's pleadings

Court orders

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  1. 1.The 1st Defendant's Notice of Motion dated 21.11.2023 is dismissed with costs to the Plaintiff
  2. 2.Parties directed to focus on the main suit instead of interlocutory matters
Jurisdiction invoked
Original civil jurisdiction over land disputes; application under the Civil Procedure Rules (suit governed by Order 1 Rule 9 Civil Procedure Rules; Article 50(1) Constitution invoked)

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, "Nyamaru & another (Suing as the Representative of the Estate of the Late Gitau Kilonda alias Gitau Kironda) v Gathecha & 8 others (Environment & Land Case 187 of 2018) [2024] KEELC 3383 (KLR)", Case Analysis (2024). (Not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3383/eng@2024-04-18

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