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ELCDismissedNotice of Motion dated 18th July 2024· [2024] KEELC 6675 (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 E038 of 2021) [2024] KEELC 6675 (KLR)

High Court of Kenya
24 September 2024
MMM.D. Mwangi
1,534 words in judgment
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The bottom line

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The High Court ruled that officials of a registered Kenyan society are personally liable for its court debts and must pay up or risk arrest.

What this practically means

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Executive summary

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This ruling by the High Court at Nairobi (M.D. Mwangi, J) determined a Notice of Motion dated 18th July 2024 by Arthur Chege, Secretary of Thome V Residents Welfare Association, and two other officials, Kimani Mbugua Maguta and David Njuguna. They sought to set aside warrants of arrest issued by Deputy Registrar Hon. Vincent Kiplagat on 17th July 2024, following a Notice to Show Cause why they should not be committed to civil jail for a decretal debt owed to the Respondent Advocate. The applicants argued that the society is a corporate entity whose officials are not personally liable for its debts, and that the Deputy Registrar issued the warrants without first determining their preliminary objection dated 3rd June 2024. The Respondent opposed, terming 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. Applying Section 38 of the Civil Procedure Act and Order 22, the court found the procedure for arrest in execution had been properly followed - the applicants were served, responded by replying affidavit and preliminary objection, and objections to a registrar's orders lie before a judge. Relying on authority that societies registered under the Societies Act lack legal capacity to sue or be sued in their own name and act only through officials in a representative capacity, the court held the applicants personally, jointly and severally liable for the society's debt. The application was dismissed with costs to the Respondent.

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 will not be set aside; the applicants, as office holders of the judgment-debtor society, are jointly and severally liable for the decretal sum

Reasoning

Section 38 of the Civil Procedure Act and Order 22 permit execution by arrest where the judgment-debtor has been given an opportunity to show cause. The applicants were served, filed a replying affidavit and a preliminary objection. Under Order 49 Rule 5 a registrar may issue such notices, and objections lie to a judge. The court, adopting authority on societies under the Societies Act, held that a society has no legal personality and must sue or be sued through its officials, making the applicants properly targeted in execution.

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; it sues or is sued through its office holders or trustees in a representative capacity
  • Issuance of warrants of arrest is a permitted mode of executing a decree provided the statutory process is strictly 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; Order 49 Rules 5 & 7
  • Constitution of KenyaArticle 159
  • Societies Act

Cases cited (5)

  • Solomon Muriithi Gitandu & Another v Jared Maingi Mburu
    [2017] eKLR
  • Braeburn Limited v Gachoka and Another
    [2007] eKLR
  • Innocent G. Ondiek v Julius Nakaya Kabole
    [2019] eKLR
  • African Orthodox Church of Kenya v Charles Omuroka & Another
    [2014] eKLR
  • Trustees Kenya Redeemed Church & Another v Samuel M'Obuy Morara & 5 Others
    [2011] eKLR
Jurisdiction invoked
Order 22 Rules 31 & 34, Order 49 Rules 5 & 7, Sections 3A, 34 and 38 of the Civil Procedure Act and 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 E038 of 2021) [2024] KEELC 6675 (KLR)", Case Analysis (2024). Notice of Motion dated 18th July 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6675/eng@2024-09-24

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