Ndengwa v Dandora Juakali Association

Issues i. Who were the proper parties to be sued where a plainti sought to sue an association, which was neither incorporated nor a body corporate? Held 1. The plainti’s suit, as it stood had been mounted and prosecuted as against an association, which was neither incorporated nor a body corporate, whatsoever. Instructively, the plainti’s suit had been mounted against an unincorporated body, which was not a legal entity known to law. The plainti neither tendered nor adduced before the court any document, whether certicate of registration of an association; certicate of registration of society or certicate of incorporation, if any, denoting that the defendant against whom the suit had been led was duly registered under any legal regime. 2. From the name of the defendant, it was an ordinary association, like the ones which were ordinarily registered under the Ministry of Sports, Gender, Culture and Social Services. An association, the defendant not excepted, were never imbued or conferred with any legal capacity, to enable them to sue or be sued in its own name, whatsoever. On the other hand, where one, the plainti not excepted, was keen to sue and implead an association or a society (which were not legal entities), then the plainti was obliged to sue the association through the ocials thereof or the registered trustees of the association, if any. 3. If the plainti was convinced that his suit lay as against the defendant, then it behooved the plainti to track down the names of the chairperson, the treasurer and the secretary of the association or the names of the management committee members; and thereafter to sue same on behalf of the defendant association. No legal suit could be mounted and/or maintained against a non-existent legal entity, the defendant association not excepted. 4. The plainti’s suit, which had been mounted against an association, which was not a legal entity, was certainly misconceived and stillborn. Where a suit was mounted against a non-existent body, the defendant not excepted, such a suit was a nullity ab initio and thus incapable of redemption, whatsoever. The plainti’s suit was therefore, irredeemably bad and thus legally untenable. 5. It behooved the plainti to tender and place before the court evidence that the defendant ever owned the suit properties and that same were duly alienated to the plainti’s predecessor in title and by extension the plainti himself. The plainti and his witnesses tendered contradictory and inconsistent evidence before the court. However, the inherent contradiction and/or inconsistency was never resolved. 6. It was not the business of the court to choose for the plainti, the evidence which was palatable for the plainti and to disregard the contradictory aspects or at all. If anything, the obligation to synchronize the evidence to be placed before the court lay on the shoulders of the persons who would fail, if no evidence or better still, contradictory evidence was placed before the court. The totality of the evidence that was placed before the court, did not rise up to the standard of proof required of the plainti by dint of section 107, 108 and 109 of the Evidence Act, Chapter 80 Laws of Kenya. Suit struck out with no orders as to costs. Citations Cases 1. Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) v Rosaline Njeri Macharia & another (Civil Appeal 64 of 2007; [2016] KECA 804 (KLR)) — Explained 2. Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) v Rosaline Njeri Macharia & Guardian Bank Limited (Civil Appeal 64 of 2007; [2016] KECA 804 (KLR)) 3. Moi, Daniel Toroitich Arap v Mwangi Stephen Muriithi & another (Civil Appeal 240 of 2011; [2014] KECA 642 (KLR)) — Explained https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20641/eng@2023-10-12 2

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4. Ndirangu, Georey v Chairman Mariakani Jua Kali Association & 2 others (Civil Suit 33 of 2004; [2005] KEHC 532 (KLR)) — Explained 5. Ngei II Estate Residents’ Association (suing Through Mauleed Majeed Kipkoech Jasho as the Registered Ocial and Chairperson of the Association)) v Nairobi City County & 5 others; Broadlands Limited & 6 others (Interested Parties) (Environment & Land Petition E037 of 2021; [2022] KEELC 3205 (KLR)) — Explained 6. Voi Jua Kali Association v Sange and others ([2002] 2 KLR 474) 7. Macfoy v United Africa Co Ltd ([1961] 3 All E.R. 1169) — Explained Statutes 1. Constitution of Kenya, 2010 — article 159(2)(d) — Interpreted 2. Evidence Act (cap 80) — section 107, 108, 109 — Interpreted Advocates Mr. Samuel Mwangi for Plainti JUDGMENT Introduction and Background: 1. The Plainti led and or commenced the instant suit vide Original Plaint dated the 17th January 2013; and in respect of which same sought for various reliefs touching on and/or concerning various Plots known as Plot No’s Block 6- 261 and Block 6-259, (sic) which were stated to belong to Dandora Jua Kali Association. 2. Subsequently, the Plainti led an amended Plaint dated the 15th December 2022; and in respect of which the Plainti revised the descriptive details pertaining to and concerning the Disputed Plots. For good measure, the reliefs sought at the foot of the amended Plaint are as hereunder; i. A declaration that the Plainti is registered as owner of HDDCD001/6 Scheme Dandora Jua Kali Association Plots No’s 293 and 291. ii. A Permanent Injunction restraining the Defendant, the third parties, squatters and/or trespassers under its directions, its agents, servants and/or employees or in any manner howsoever from , trespassing, entering, remaining on creating nuisance on or in any way dealing with the and/or interfering with the Plainti’s proprietorship interests and/or rights of quiet possession, occupation and enjoyment of land titles HDDCD001/6 Scheme Dandora Jua Kali Association Plots No’s 293 and 291 and/or interfering with the Plainti’s rights of quiet possession, occupation and enjoyment thereof. iii. Costs of and incidental to the suit and interest at court rates. iv. Any other remedy as the Honorable court may deem t and applicable in the circumstances. 3. Upon being served with the original Plaint, the Defendant duly entered appearance, but however failed to le a Statement of Defense. Further and in addition, even though the Defendant was similarly served with the amended Plaint, same did not le any Statement of Defense to the amended Plaint. 4. Owing to the fact that the Defendant herein neither led any Statement of Defense to the original Plaint nor the amended Plaint, the instant matter proceeded on the basis of formal proof and whereupon the Plainti called four (4) witnesses. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20641/eng@2023-10-12 3

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Evidence By The Parties: A. Plainti ’s Case: 5. The Plainti’s case gravitates and revolves around the Evidence of four (4) witnesses, namely, Robert Muriithi Ndengwa, Felister Waithera Muriithi, Samuel Waruthumu Wachira and Francis Wanyoike, who testied as PW1, PW2 and PW3, respectively. 6. It was the evidence of PW1 that same entered into a sale/purchase agreement with one Anthony Njoroge Njoki on the 14th August 2004, whereupon same bought and acquired Plots Numbers Block 5-PL-210 and 211, respectively, which Plots were previously described as falling under the auspices of Kayole Junction Housing Scheme. 7. Furthermore, the witness testied that prior to the named plots being re-arranged and re-numbered, same were previously described and known as Plots Numbers A-556-MM-464 and A-557-MM-469, respectively. In any event, the witness added that the foregoing description subsisted during the time when the Plots belonged to Mali Mugu Jua Kali Association Development Projects. 8. It was the further testimony of the witness that upon entry into and execution of the sale agreement with Anthony Njoroge Njoki, the said vendor handed over to and in favor of the witness the various documents, inter-alia, the Share Certicates bearing the name of Kayole Junction Housing Scheme. For clarity, the witness added that the share certicate which were handed over unto him by the vendor were Share Certicate Numbers 325 and 326, respectively. 9. Additionally, the witness testied that based on the share certicate numbers 325 and 326, respectively, the Defendant herein thereafter conrmed that the witness was indeed the lawful owner and/or proprietor of Plot numbers Block 6-261 and Block 6-259, respectively. 10. Other than the foregoing, the witness averred that the details pertaining to and or concerning the Plots which same had bought and acquired from Anthony Njoroge Njoki were realigned and renumbered and same later on became known as HDDCC001/6 Sheme Dandora Jua Kali Association Plot numbers 291 and 293, respectively. 11. Notwithstanding the foregoing, the witness averred that even though the description and Plot numbers kept on changing; the ground relative to the suit plots remained the same and it is the witness ( read, the Plainti) who has variously been in occupation and possession of the suit plots. 12. Be that as it may, the witness testied that despite being the lawful and benecial owners of the suit Plots, the Defendant herein together with her agents, servants and hirelings have variously trespassed onto and interfered with the Plainti’s occupation and possession of the suit Plots. In this regard, the witness contends that the actions and activities by the Defendant and her agents are unlawful and therefore ought to be averted. 13. On the other hand, the witness also testied that despite being the lawful and benecial owner of the suit Plot, the Defendant herein has also failed to acknowledge his (witness) rights to and in respect of the suit property and in this respect, the witness has thus implored the Honourable court to issue a Declaratory order declaring same as the lawful and legitimate proprietor of the suit Plots. 14. Other than the foregoing, the witness herein testied that same recorded a Witness statement pertaining to and concerning the subject matter. In this regard, the witness alluded to the witness statement dated the 17th January 2023; and which witness statement the witness sought to adopt and rely on. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20641/eng@2023-10-12 4

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15. Pursuant to and at the instance of the witness, the witness statement dated the 17th January 2013; was duly admitted and constituted as the Evidence- in- chief of the witness. 16. Furthermore, the witness also alluded to the List of Documents dated the 17th January 2013; and containing four sets of documents. In this regard, the witness sought to adopt and produce before the court the named documents contained at the foot of the List of Documents dated the 17th January 2013. 17. In the absence of any objection, the documents enumerated at the foot of the List of Documents dated the 17th January 2013; were duly admitted and marked as Exhibits P1 to P4, respectively. 18. Furthermore, the witness then invited the court to take cognizance of the amended Plaint dated the 15th December 2015 and thereafter implored the Honourable court to grant the reliefs enumerated at the foot of the amended Plaint dated the 15th December 2022. 19. The Second witness who testied on behalf of the Plainti was Felista Waithera Muriithi. Same testied as PW2. 20. It was the testimony of the witness that same is the wife of the Plainti and that by virtue of being the wife of the Plainti, same was privy to and knowledgeable of the circumstances surrounding the purchase and acquisition of the suit plots from Anthony Njoroge Njoki. 21. It was the further testimony of the witness that upon the purchase and acquisition of the suit Plots, the vendor, namely, Anthony Njoroge Njoki, handed over to and in favor of the Plainti the share certicate numbers 129 and 147, respectively, in the name of Mali Mugu Jua Kali Association Development Projects; and which share certicates conrm that the Plainti herein was now the owner of Plot numbers A-557-MM-469 and A-556-MM-464, respectively. 22. Additionally, the witness herein also testied that subsequently the share certicate which initially bore the name of Mali Mugu Jua Kali Association Development Projects were converted to and became known as Kayole Junction Housing Scheme. In any event, the witness added that the Share certicates were thereafter varied and new share certicates were issued to and in favor of the Plainti. For coherence, the witness claried that the new share certicates were now known as Numbers 325 and 326, respectively. 23. Furthermore, the witness herein also added that upon the purchase and occupation of the suit Plots, the Plainti and herself entered upon and took possession of the suit Plots and in any event, enjoyed peaceful possession until the 20th December 2012; when Third Parties and squatters started interfering with their occupation and possession of the suit properties. 24. Nevertheless, the witness testied that despite their eorts, that is the eorts of the Plainti and the witness to stop the Defendant and the Third Parties from interfering with their rights to the suit property, the Defendant herein failed to stop and thus the Plainti was constrained to le the instant suit. 25. Other than the foregoing, the witness alluded to the witness statement dated the 17th January 2023; and thereafter invited the court to adopt the witness statement as her Evidence. For coherence, the witness statement under reference was thereafter duly admitted and adopted as the Evidence- in chief of the witness. 26. The Third witness who testied on behalf of the Plainti herein was one Samuel Warutumu Wachira. Same testied as PW3. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20641/eng@2023-10-12 5

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27. According to the witness herein, same is privy to and knowledgeable of the facts pertaining to and concerning the purchase and acquisition of Plots numbers 293 and 291, respectively by the Plainti. Furthermore, the witness averred that he was present and witnessed the Plainti herein purchasing the suit plots from Anthony Njoroge Njoki on the 14th August 2004. 28. Other than the foregoing, the witness intimated to the court that same had recorded a witness statement pertaining to and concerning the dispute before the court. In this regard, the witness alluded to the statement dated the 17th January 2013; and thereafter sought to adopt and rely on the named witness statement. 29. At the request and instance of the witness, the named witness statement was adopted and admitted as the Evidence in chief of the witness. 30. However, the manner in which the named witness statement was crafted is not only curious but startling. Suce it to point out that the witness has contended in the witness statement that he is the proprietor and benecial owner of the suit Plots. 31. Furthermore, the witness herein has also averred that it is him who acquired the plots in question pursuant to a sale agreement dated the 14th August 2004; from one Anthony Njoroge Njoki. On the other hand, the witness herein has also averred that same (witness) is claiming an order of Injunction restraining the Defendant and any third parties from interfering with the suit plots. 32. The Fourth witness who testied on behalf of the Plainti is one Francis Wanyoike Gatabi. Same testied as PW4. 33. Similarly, the witness herein intimated to the court that same was present when the Plainti entered into the sale/purchase agreement with Anthony Njoroge Njoki on the 14th August 2004. In this regard, the witness arm that the Plainti herein bought and acquired Plots numbers 293 and 291, Dandora Jua Kali Association. 34. Additionally, the witness has intimated to the court that same recorded a witness statement in respect of the subject matter and in this regard the witness drew the attention of the court to the witness statement dated the 17th January 2013. Furthermore, the witness thereafter sought to adopt and rely on the named witness statement as his Evidence in chief. 35. At the instance and request of the witness, the Witness statement dated the 17th January 2013; was adopted and admitted as the Evidence in chief on behalf of the witness herein. 36. Nevertheless, despite the witness herein being a witness on behalf of the Plainti, the witness statement which was adopted by the witness is also curiously worded and similarly, alleges that it is the Witness and not the Plainti, who bought and acquired the Suit Plots. 37. Like the Evidence of PW3, the witness statement herein also indicates that the witness beforehand is the proprietor and benecial owner all that parcels of land referred to as Plot numbers 293 and 291, respectively. 38. Besides, the witness goes further and avers that it is him who acquired the plots pursuant to the sale agreement and transfer of shares (sic) duly entered into between himself (witness) and Anthony Njoroge Njoki on the 14th August 2004. 39. Further and in addition, the witness contends that he acquired the Plots (sic) upon the Defendants through her predecessor, namely, Kayole Junction Housing Scheme, who allegedly assured the witness https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20641/eng@2023-10-12 6

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that one, Anthony Njoroge Njoki, from whom the witness bought the plots was the bona de owner thereof. 40. Other than the foregoing, the witness ventured forward and states that it is him who is claiming an order of injunction to restrain the Defendant, her agents and Third Parties acting under the Defendant from interfering with the suit plots. 41. Despite the curious and startling averments contained in the witness statement, it is appropriate to reiterate that the witness statement under reference was duly admitted and constituted as the Evidencein chief of the witness. 42. With the foregoing testimony, the Plainti’s case was duly closed. b. Defendant’s Case: 43. Even though the Defendant entered appearance through the rm of M/s Kiriba & Co Advocates, the Defendant neither led a Statement of Defense to the original Plaint nor to the amended Plaint, the latter which is dated the 15th December 2022. 44. Furthermore, the Defendant herein neither attended court nor participated in the proceedings. Consequently and in this regard, it suces to point out that no evidence, (whether oral and/or documentary), was ever tendered on behalf of the Defendant. 45. Owing to the fact that the Defendant did not participate in the proceedings herein, the Defendant’s case was similarly closed upon the closure of the Plainti’s case. Parties’ Submissions: 46. Upon the close of the respective Parties cases, Learned counsel for the Plainti sought for time to le and serve written submissions. Consequently, the court proceeded to and directed counsel for the Plainti herein to le and serve written submissions within 7 days from the date of close of the Plainti’s case. 47. Notably, Learned counsel for the Plainti duly complied and led written submissions on behalf of the Plainti. For coherence, the written submissions led by and on behalf of the Plainti forms part of the record of the court. 48. Instructively, the said written submissions shall be considered by the court in the course of analyzing the matter beforehand and shall be taken into account, where appropriate, with a view to arriving at a fair and expedient determination of the matter beforehand. Issues For Determination: 49. Having reviewed the amended Plaint dated the 15th December 2022; together with the Evidence (both oral and documentary) on behalf of the Plainti and upon consideration of the written submissions led; the following issues do emerge and are thus deserving of determination. i. Whether a suit can lawfully be mounted and/or maintained against an Association like the Defendant herein or otherwise. ii. In the alternative, whether the Plainti’s suit as against the Defendant is Legally tenable. iii. Further and in any event, whether the Plainti herein has proved his case as against (sic) the Defendant or otherwise. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20641/eng@2023-10-12 7

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Analysis and Determination Issue Number 1 and 2 Whether a suit can lawfully be mounted and/or maintained against an Association like the Defendant herein or otherwise. In the alternative, whether the Plainti’s suit as against the Defendant is Legally tenable. 50. The facts of the instant matter appear simple and straight forward. For coherence, it is the Plainti’s case that same entered into and executed a sale/purchase agreement on the 14th August 2004 with one, namely, Anthony Njoroge Njoki, (hereinafter referred to as the vendor). 51. Furthermore, the Plainti also testied that upon entry into and execution of the sale agreement with the vendor, the vendor herein proceeded to and transferred the share certicate to and in his favor. In this regard, the Plainti added that same was thereafter issued with share certicate numbers 129 and 147, respectively, in the name of Mali Mugu Jua Kali Association Development Project. 52. First forward, the Plainti avers that the name of the society which had hitherto issued the share certicates changed to and became known as Kayole Junction Housing Scheme. In addition, the Plainti averred that same was thereafter re-issued with share certicate numbers 325 and 326, respectively. 53. Other than the foregoing, it was also the Plainti’s case that the name of the Society/Association thereafter morphed from Kayole Junction Housing Scheme to Dandora Jua Kali Association, which is the current Defendant and against whom the Plainti now seeks the various reliefs enumerated at the foot of the amended Plaint dated the 15th December 2022. 54. From the foregoing, it is imperative to state and observed that the Plainti’s suit, as it stands has been mounted and prosecuted as against an Association, which is neither incorporated nor a Body Corporate, whatsoever. Instructively, there is no gainsaying that the Plainti’s suit has been mounted against an unincorporated body, which is not a legal entity known to law. 55. Additionally, it is also important to point out that the Plainti herein neither tendered nor adduced before the Honorable court any document, whether certicate of registration of an Association; Certicate of Registration of Society or Certicate of incorporation, if any, denoting that the Defendant against whom the suit has been led is duly registered under any legal regime. 56. Clearly, the court has been left to grope in darkness as to the legal status of the Defendant herein. However, from the name of the Defendant, it is not dicult to discern that same is an ordinary Association, like the ones which are ordinarily registered under the Ministry of Sports, Gender, Culture and Social Services. 57. Moreover, there is no gainsaying that an Association, the Defendant herein not excepted, are never imbued or conferred with any legal capacity, to enable same to sue and/or be sued in its own name, whatsoever. 58. On the other hand, it is also important to observe that where one, the Plainti not excepted, is keen to sue and implead an Association or a Society (which are not legal entities), then the Plainti is obliged to sue the Association through the ocials thereof or better still, the Registered Trustees, of the Association, if any. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20641/eng@2023-10-12 8

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59. In my humble view, if the Plainti herein was convinced that his suit lies as against the Defendant, then it behooved the Plainti to track down the names of the chairperson, the treasurer and the secretary of the Association or the names of the Management Committee Members; and thereafter to sue same on behalf of the Defendant Association. Clearly, no legal suit can be mounted and/or maintained against a non-existent legal entity, the Defendant Association not excepted. 60. To buttress the legal position that an Association like the one beforehand cannot sue and/or be sued in its own name, it suces to adopt and endorse the holding in the case of Geoffrey Ndirangu versus Chairman Mariakani Jua Kali Association & 2 Others (2005) eKLR, where the court held as hereunder; ‘The law on suits by or against societies is well settled. A society not being a legal person cannot sue or be sued in its name. It has to sue or be sued through its ocials – Voi Jua Kali Association –vs- Sange and others (2002) 2 KLR 474. And the ocials have to be named. Titles like Chairman, Secretary and or treasurer cannot be used as those are not legal persons either.’ 61. Furthermore, this court has had occasion to speak to the same position in the case of NgeiII Estate Residents’ Associationsuing Through Mauleed Majeed Kipkoech Jashoas the Registered Official and Chairperson of the Association versus Nairobi City County& 2 others (UR), where the court held thus; “ By virtue of being an association registered under the society Act, it is therefore imperative to note and/or observe that under private law the Petitioner herein is therefore not a body Corporate and hence same is not vested with Legal capacity to be sue or be sued in own name. In this regard, if the matter before hand was an Ordinary a civil suit, then the Association herein could not le and/or mount the suit in its own name. For clarity, the suit could only be led in the names of the Registered Ocials and/or Committee Members, albeit on behalf of the Society.” 62. Taking into account the foregoing observations, it is therefore apparent and evident that the Plainti’s suit, which has been mounted against an Association, which is not a Legal entity, is certainly misconceived and stillborn. 63. On the other hand, the next question that does arise is; whether a suit like the instant one, which has been commenced against a non-existent body, is curable and/or redeemable by way of amendment or otherwise. 64. Similarly, the ipside question that also arises is whether such a suit can be remedied by the invocation and application of the provisions of Article 159(2)(d) of the Constitution 2010; which implores courts to eschew procedural technicalities and venture to deal with Substantive Justice. 65. Arising from the foregoing questions, it is now appropriate to venture forward and to interrogate the legal status of the suit that has been mounted against a non-existent Party. 66. In answer to the two questions which have been alluded to in the preceding paragraphs, it is appropriate to take cognizance of the ratio decidendi in the case of Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) versus Rosaline Njeri Macharia & another [2016] eKLR. 67. For coherence, the Court of Appeal stated and held as hereunder; https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20641/eng@2023-10-12 9

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(27) 68. Mr. Waweru Gatonye, counsel for the appellant, conceded in his written submission that his rm made the mistake of omitting the word “Board” after the word “Fund” which resulted in the plainti in the suit being Deposit Protection Fund instead of Deposit Protection Fund Board. What was the legal eect of this error? First, a plainti is dened in Black’s Law Dictionary, Ninth Edn as “the party who brings a civil suit in a court of law”. The “plainti” in the struck out suit, not being a legal body, there was clearly no plainti in law. A “suit” that is not instituted by a plainti who has no legal personality cannot be said to have a plainti as a party and is consequently a nullity. If a suit is a nullity, it is incapable of resuscitation. No life can be breathed into it. It is dead. It does not exist and it is therefore incapable of amendment. Furthermore, the court proceeded and stated as follows; (29) Clearly, a suit not by or against a person or a body corporate is incompetent. It is anullity. That answers the rst question. If more authority was required, the philosophy in the sagacious words of Madan, JA as he then was in D. T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another, (Civil Appeal No. 37 of 1978) that “a court of justice should aim at sustaining a suit rather than terminating it by summary dismissal…”, show that only there is a suit, however poorly drafted, is amendment possible to save it. Where, as here, the suit is a nullity, there is no litigation in being in law and the issue of amendment does not arise. Madan, JA as he then was alluded to litigation which is akin to a patient who can be treated and healed. Here, the patient is in the morgue. He is dead. (30) In D.T. Dobie’s case (supra), there was a suit in being and the issue was whether to strike it out or not. Not so in the instant case which can be distinguished on the ground that in the instant appeal, there was no suit before trial judge. In light of this, the learned judge was correct in striking out the plaint as it had no plainti known to law, the Deposit Protection Fund not being a body corporate. 69. Applying the ratio decidendi in the foregoing decision, there is no gainsaying that where a suit is mounted against a non-existent body, the Defendant herein not excepted, such a suit is a nullity ab initio and thus incapable of redemption, whatsoever. 70. Consequently and in the premises, I come to the conclusion that the Plainti’s suit before the court, which has been mounted and maintained against an Association and which is not a legal entity, is therefore, irredeemably bad and thus legally untenable. 71. In a nutshell, the Plainti’s suit beforehand thus merits striking out, for being void ab initio. Further and in any event, it is trite and established law that one cannot put something on nothing and expect to come out with something. Surely, the something placed on nothing will collapse. 72. Before departing from the issue herein, it is appropriate to reiterate the dictum in the case of Macfoy vs. United Africa Co. Ltd [1961] 3 All E.R. 1169, where Lord Denning, whilst delivering the opinion of the Privy Council at page 1172 (1) said; “ If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20641/eng@2023-10-12 10

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73. In simple terms, I am afraid that the Plainti’s suit was dead long before being led in court. Consequently, the net eect is that there was/is no suit, capable of being entertained and/or adjudicated upon by this court or at all. Issue Number 3 Further and in any event, whether the Plainti herein has proved his case as against (sic) the Defendant or otherwise. 74. Other than the fact that the suit was mounted and/or led against a non-existent legal entity which has been discussed in the preceding paragraphs, it is also appropriate to venture forward and address the issue herein albeit briey. 75. From the Plainti’s evidence, the suit Plots, which form the basis of the subject suit initially belonged to one, namely, Anthony Njoroge Njoki; who sold his shares to and in respect of the suit Plots to the Plainti. 76. Additionally, the Plainti testied that upon the sale of the suit plots and the transfer of the share certicate to and in favor of the Plainti, the Plainti herein became the lawful and legitimate proprietor of the suit Plots. 77. On the other hand, the Plainti averred that though the description and identities of the suit plots kept varying and being re-numbered, same however related to the same properties, which had been sold to and in favor of the Plainti by the vendor. 78. On the other hand, the Plainti proceeded and stated that the Defendant herein is privy to and or aware of the Plainti’s ownership rights over and in respect of the suit property. However, despite being aware of the Plainti’s rights to and in respect of the suit properties, the Defendant has continued to interfere with the Plainti’s rights. 79. Moreover, the Plainti has also averred that other than the Defendant herein, there are also Third Parties and squatters who have been interfering with the Plainti’s rights to and or interests over the suit property. Nevertheless, it is instructive to point out that the Plainti has not availed the names of the Third Parties and the squatters, who are also complained against. 80. It is important to underscore that even when a suit is not defended, like the one beforehand, it still behooves the Plainti to tender plausible and cogent evidence in proof of his/her case. Simply put, the fact that a suit is not defended or better still proceeds on the basis of a formal proof, does not lessen the burden of proof cast upon the Plainti. 81. To this end, it is instructive to reiterate the holding of the court of appeal in the case of Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & another [2014] eKLR, where the court held thus; “ It is a rmly settled procedure that even where a defendant has not denied the claim by ling of defence or an adavit or even where the defendant did not appear, formal proof proceedings are conducted. The claimant lays on the table evidence of facts contended against the defendant. And the trial court has a duty to examine that evidence to satisfy itself that indeed the claim has been proved. If the evidence falls short of the required standard of proof, the claim is and must be dismissed. The standard of proof in a civil case, on a balance of probabilities, does not change even in the absence of a rebuttal by the other side.” 82. In my humble view, it behooved the Plainti herein to tender and place before the court evidence that the Defendant herein ever owned the suit properties and that same were duly alienated to the Plainti’s predecessor in title and by extension the Plainti himself. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20641/eng@2023-10-12 11

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83. Secondly, it is not lost on this court that the Plainti herein and his witnesses tendered contradictory and inconsistent evidence before the court. In this respect, it is worthy to recall the remarks of the court, which were expressed shortly after the adoption and admission of the Evidence of PW3 and PW4, respectively. 84. Invariably, even though PW3 and PW4 purported to have testied on behalf of the Plainti herein, their witness statement, which were adopted and admitted as their Evidence in chief appeared to be contradicting the Plainti’s claim. 85. For good measure, the salient features of the Evidence of PW3 are as hereunder; “ I am the registered proprietor and bencial owner to all that parcel of land known as plots number 293 and 291 (the Plots). I acquired the plots pursuant to sale agreement and transfer of shares dully entered into between me and Anthony Njoroge Njoki on the 14th August 2004” 86. Furthermore, the witness statement of PW3, which was adopted as the Evidence in chief proceeds and states as follows; “ I acquired the plots upon the Defendant through its predecessor Kayole Junction Housing Scheme warranting and assuring me that the said Anthony Njoroge Njoki from whom I bought the plots, was the bona de benecial owners and proprietor of the plots”. 87. On his part, PW4, namely, Francis Wanyoike also adopted his witness statement dated the 17th January 2013; and the salient features thereof replicate the ones which have been reproduced hereinbefore. For coherence, the Witness Statement and thus the Evidence- in chief of PW4 also highlights that the suit plots were bought and acquired by PW4. 88. In my humble view, there is an inherent contradiction and inconsistency in the witness statement, which were duly adopted and admitted as the evidence on the part of PW1 vis a vis the evidence of PW3 and PW4, respectively. However, the inherent contradiction and/or inconsistency was never resolved. 89. Furthermore, it is imperative to point out that it is not the business of this court to choose for the Plainti, the evidence which is palatable for the Plainti and to disregard the contradictory aspects or at all. If anything, the obligation to synchronize the evidence to be placed before the honorable court lies on the shoulders of the persons who will fail, if no evidence or better still, contradictory evidence is placed before the court. 90. In my humble view, I must state and emphasize that the totality of the evidence that was placed before the Honourable court, do not rise up to the standard of proof required of the Plainti by dint of Section 107, 108 and 109 of the Evidence Act, Chapter 80 Laws of Kenya. 91. Sadly, even though the suit herein was not defended, nay, proceeded on the basis of formal proof, the evidence placed before the court is not sucient to warrant a positive verdict in favor of the Plainti. 92. Consequently and in view of the foregoing, I would similarly have come to the conclusion that the Plainti’s case, which is wrought with and fraught of inherent contradictions, courts Dismissal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20641/eng@2023-10-12 12

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Final Disposition: 93. From the discourse, captured and reected in the body of the Judgment, there is no gainsaying that the instant suit was mounted and maintained against a non-existent Legal entity. Consequently and in this regard, the entire suit was void ab initio. 94. Arising from the foregoing, the obvious and inescapable conclusion is that the suit beforehand is premature, misconceived and thus worthy of being struck out, for being a non-starter. 95. In a nutshell, the suit vide amended Plaint dated the 15th December 2022; be and is hereby struck out, albeit with no orders as to costs. 96. It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF OCTOBER 2023. OGUTTU MBOYA, JUDGE. In the Presence of: Benson - Court Assistant. Mr. Samuel Mwangi for the Plainti. N/A for the Defendant. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20641/eng@2023-10-12 13

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