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ELCOther· [2025] KEELC 2975 (KLR)

Mohamed & 54 others v County Government of Mandera (Environment & Land Case E008 of 2024) [2025] KEELC 2975 (KLR)

Environment and Land Court
27 March 2025
2,160 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to strike out a community land suit against a county government, instead giving the farmers 30 days to fix paperwork problems.

What this practically means

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Executive summary

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The Defendant filed a Notice of Motion dated 24th May 2024 under Order 2 Rule 15, Order 1 Rule 8 and Sections 3 and 3A of the Civil Procedure Act seeking striking out of the Plaintiffs' pleadings for failing to disclose a reasonable cause of action, for being an abuse of process, and for failing to meet the threshold of a representative suit. Counsel for the Defendant argued that the authority to plead was signed by only three individuals purporting to represent over 450 Garbaqoley Farmers, that no certificate of registration of the association was produced, and that the inclusion of members of three associations created conflicts of interest. The Plaintiffs opposed, contending that the issues were factual matters for trial and that the suit concerned the alleged conversion of community farmland into unlawful dumpsites. The court framed three issues: compliance with Order 1 Rule 8, disclosure of a reasonable cause of action, and whether the suit should be struck out. It found a procedural defect in the representative capacity - no consent, registration or notice was demonstrated, and three plaintiffs withdrew claiming their names were used without consent. However, invoking Order 1 Rule 9, Article 159, and D.T. Dobie, the court held the defects were curable at the suit's infancy and that the claim - concerning conversion of community land to public land contrary to Article 63(3) and Sections 21 and 22 of the Community Land Act - raised triable issues. The application was not granted; the Plaintiffs were given 30 days to amend the Plaint, the Defendant 21 days to amend in response, with costs in the cause.

Key legal issues

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01

Compliance with Order 1 Rule 8 representative suit requirements

Holding

Plaintiffs did not demonstrate compliance - no certificate of registration, no consent from the 450 farmers represented, no notice of intention to sue, and three plaintiffs withdrew claiming their names were included without consent

Reasoning

Order 1 Rule 8 requires that represented persons share the same interest and that notice be given to all interested parties. Citing Jonathan Njagi and Moses Wachira, the court held the burden lay on the plaintiffs to show authorization and consent. Their failure, plus the withdrawal of three plaintiffs, disclosed a procedural defect in the representative capacity.

p. 3
02

Whether the pleadings disclose a reasonable cause of action under Order 2 Rule 15

Holding

The suit raises triable issues on unlawful conversion of community land to public land and cannot be struck out

Reasoning

The plaintiffs alleged the Defendant converted farmland to dumpsites and converted community land to public land without due process. Article 63(3) of the Constitution and Sections 21 and 22 of the Community Land Act prescribe how community land may be converted. The suit thus raises serious triable issues requiring full trial.

p. 4
03

Whether to strike out or allow the suit to proceed

Holding

Procedural lapses are curable; plaintiffs granted leave to amend rather than having the suit struck out

Reasoning

Applying Order 1 Rule 9 (misjoinder/non-joinder not fatal) and D.T. Dobie, the court held that courts should sustain suits rather than terminate them prematurely, especially at the suit's infancy. Leave to amend was the appropriate remedy instead of the guillotine of striking out.

p. 5

Legal principles established

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  • A representative suit must be properly authorized and supported by express consent of those represented; where authorization is disputed, the burden is on the initiating party
  • A suit should not be summarily dismissed unless it is plainly and obviously incurable by amendment; courts should sustain rather than terminate suits
  • Unregistered community land is held in trust by County Governments for the communities for which it is held

Court orders

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  1. 1.Application by Notice of Motion dated 24th May 2024 dismissed in effect: suit not struck out
  2. 2.Plaintiffs granted leave of 30 days from the date of the Ruling to amend their Plaint to align it with the provisions of Order 1 Rule 8 of the Civil Procedure Rules
  3. 3.Defendant granted corresponding leave of 21 days to amend its pleadings upon being served with amended pleadings
  4. 4.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 8
  • Civil Procedure Rules, 2010Order 1 Rule 9
  • Civil Procedure Rules, 2010Order 2 Rule 15
  • Civil Procedure ActSections 3 and 3A
  • Constitution of Kenya, 2010Article 63(3)
  • Constitution of Kenya, 2010Article 159
  • Community Land Act, Cap 287 Laws of KenyaSections 21 and 22

Cases cited (4)

  • Jonathan Njagi & 15 Others v County Government of Kirinyaga & Another
    [2019] eKLR
  • Moses Wachira v Niels Bruel & 2 Others
    [2015] eKLR
  • Jack Mukhongo Munialo -Vs- Nzoia Sugar Company Ltd & another
    (2017) eKLR
  • D.T Dobie & Company (Kenya) Limited -vs- Joseph Mbaria Muchina & Another
    (1980) eKLR
Jurisdiction invoked
Civil Procedure Rules, 2010, Order 2 Rule 15, Order 1 Rule 8, Sections 3 and 3A of the Civil Procedure Act

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, "Mohamed & 54 others v County Government of Mandera (Environment & Land Case E008 of 2024) [2025] KEELC 2975 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2975/eng@2025-03-27

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