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ELCDismissedNotice of Motion dated 18th July 2024· [2024] KEELC 6649 (KLR)

Chege & 2 others (In Their capacity as the officials of Thome V Residents Welfare Association) v Njeru Nyaga & Co Advocates (Environment & Land Miscellaneous Case E037 of 2021) [2024] KEELC 6649 (KLR)

Environment and Land Court
24 September 2024
MMM.D. Mwangi
1,528 words in judgment
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The bottom line

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A Kenyan court ruled that officials of a residents' association can be arrested for the association's unpaid debts because societies have no legal identity of their own.

What this practically means

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Executive summary

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The applicants, officials of Thome Residents Welfare Association (Arthur Chege, Kimani Mbugua Maguta and David Njuguna), moved the court by Notice of Motion dated 18th July 2024 seeking to set aside warrants of arrest issued by Deputy Registrar Hon. Vincent Kiplagat on 17th July 2024, and in their place a determination under Section 34 of the Civil Procedure Act as read with Order 22 rules 34 & 35 on who is required to pay the decretal sum. The decree arose from contested fees owed to the respondent advocate; a notice to show cause why the society should not be committed to civil jail had been served, to which the applicants responded by a replying affidavit and preliminary objection contending that the society is a corporate entity whose officials are not personally liable. They complained that warrants were issued before the objection was determined. The respondent opposed, calling the application frivolous and an abuse of process. The court framed two issues: whether the warrants should be set aside, and what orders should issue. Relying on Section 38 of the Civil Procedure Act, Order 22 rule 31 and Order 49 Rule 5, the court held that execution by arrest is lawful where the prescribed procedure, including notice to show cause, is followed. The applicants had been duly served and had responded. The court further held, following authority on the Societies Act, that a society has no legal capacity to sue or be sued in its own name and acts only through its officials, who are therefore personally liable for the society's debts in a representative capacity. Finding no reason to set aside the warrants, M.D. Mwangi J dismissed the application with costs to the respondent on 24th September 2024.

Key legal issues

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01

Whether the warrants of arrest issued by the Deputy Registrar on 17th July 2024 should be set aside

Holding

The warrants were lawfully issued and the application to set them aside was dismissed; the applicants, as officials of the judgment-debtor society, are personally liable for the decretal debt.

Reasoning

Section 38 of the Civil Procedure Act and Order 22 rule 31 permit execution by arrest after the judgment-debtor has been given notice to show cause, and Order 49 Rule 5 empowers a registrar to issue notices to show cause, with objections proceeding before a judge. Here the applicants were served, filed a replying affidavit and preliminary objection, and the procedure was followed. As officials of a society, which has no legal personality, they are properly liable for the society's debts in a representative capacity.

p. 4

Legal principles established

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  • A society registered under the Societies Act is not a legal person capable of suing or being sued in its own name and can only sue or be sued through its officials in a representative capacity.
  • Where an objection is taken to formal execution orders made by a registrar under Order 49 Rule 5, all further proceedings shall be before a judge; warrants of arrest are a lawful mode of execution if the prescribed procedure is followed.

Court orders

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  1. 1.The application dated 18th July 2024 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 3A, 34, 38 (including 38(d))
  • Civil Procedure RulesOrder 22 Rules 22, 31, 34 & 35; Order 49 Rules 5 & 7
  • Constitution of KenyaArticle 159
  • Societies Actnull

Cases cited (5)

  • Solomon Muriithi Gitandu & Another -vs- Jared Maingi Mburu
    [2017] eKLR
  • Braeburn Limited -vs- Gachoka and Another
    (2007) eKLR
  • Innocent G. Ondiek -vs- Julius Nakaya Kabole
    [2019] eKLR
  • African Orthodox Church of Kenya -vs- Charles Omuroka & Another
    [2014] eKLR
  • Trustees Kenya Redeemed Church & Another -vs- Samuel M'Obuya Morara & 5 Others
    [2011] eKLR
Jurisdiction invoked
Sections 3A, 34, 38 of the Civil Procedure Act, Order 22 Rules 31 & 34 and Order 49 Rules 5 & 7 of the Civil Procedure Rules, Article 159 of the Constitution

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, "Chege & 2 others (In Their capacity as the officials of Thome V Residents Welfare Association) v Njeru Nyaga & Co Advocates (Environment & Land Miscellaneous Case E037 of 2021) [2024] KEELC 6649 (KLR)", Case Analysis (2024). Notice of Motion dated 18th July 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6649/eng@2024-09-24

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