Kalicha & 5 others (Suing as the officials of Phase II Diamond Estate Association Likoni Road Nairobi) v Regnol Oil Kenya Limited & another; Nairobi City County & another (Interested Parties) (Environment & Land Case E136 of 2024) [2024] KEELC 4950 (KLR)
The bottom line
#A Kenyan court confirmed a residents' association's chosen lawyer stays on record because the rival firm produced no proof it was ever instructed.
What this practically means
#Executive summary
#Key legal issues
#Which firm of advocates was properly instructed to act for the plaintiffs
Tim Njenga & Co. Advocates held instructions; Abdiaziz & Company Advocates produced no authority and its documents should not stand
The court compared the two firms' bases of authority. Tim Njenga & Co. instituted the suit with a plaint dated 3/04/2024 and produced an authority signed by the plaintiffs' officials, including the association's secretary, plus the association's registration certificate. The rival firm attached no supporting documentation or association authority. The secretary's sworn evidence corroborated who held instructions, giving the firm on record a prima facie edge.
Capacity of an unincorporated association to instruct advocates and litigate
An association under the Societies Act lacks capacity to sue or be sued in its own name; its officials may sue representatively under Order 1 Rule 8
Relying on Section 3 of the Societies Act and Nambuye J's decision in Living Water Church International v City Council of Nairobi, the court held that vindication of the association's rights lies with its office-holders. Order 1 Rule 8 of the Civil Procedure Rules permits representative suits. Accordingly, it was the officials who instructed Tim Njenga & Co. Advocates to file the suit.
Legal principles established
#- A firm asserting it acts for an association must produce an authority or resolution from the association's officials authorising it to act; absent such authority its filings cannot stand against a firm holding instructions.
- An unincorporated association cannot sue or be sued in its own name; its rights are vindicated by its office-holders in a representative capacity.
Court orders
#- 1.Declared that Tim Njenga & Co. Advocates are the advocates on record for the plaintiffs, there being no evidence of appointment of Abdiaziz & Company Advocates
- 2.Each party to bear its own costs of the application
- 3.Directed parties to attend Pre Trial Conference on 9/07/2024 before the Deputy Registrar
- Jurisdiction invoked
- Order 2 Rule 15, Order 9 Rules 5 and 6 of the Civil Procedure Rules, Section 23(2A) of the Advocates Act Cap. 16, Regulation 58 of the LSK Code of Conduct
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kalicha & 5 others (Suing as the officials of Phase II Diamond Estate Association Likoni Road Nairobi) v Regnol Oil Kenya Limited & another; Nairobi City County & another (Interested Parties) (Environment & Land Case E136 of 2024) [2024] KEELC 4950 (KLR)", Case Analysis (2024). Not stated in the extract (ELC suit concerning LR No. 209/17902 and LR No. 209/17536/2). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4950/eng@2024-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.