Ganjohatchers Enterprises Limited v Ziwani Poultry Enterprises Limited (Land Case E047 of 2024) [2025] KEELC 18662 (KLR) (17 July 2025) (Ruling) Neutral citation: [2025] KEELC 18662 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT THIKA LAND CASE E047 OF 2024 JA MOGENI, J JULY 17, 2025 BETWEEN GANJOHATCHERS ENTERPRISES LIMITED ..................................... PLAINTIFF AND ZIWANI POULTRY ENTERPRISES LIMITED .................................. DEFENDANT RULING 1. The Notice of Preliminary Objection dated 4/03/2025 was brought by the Defendant on the following grounds: 1. The Verifying Adavit deponed by one James Kamau Njuguna oends the mandatory provisions of Order 4 rule 1(4) of the Civil Procedure Rules, 2010. 2. There is no Resolution whatsoever by the Board of Directors of the Plainti’s Company appointing the rm of Wachira Gachoka & Company Advocates to institute the suit against the Defendant as by law required. 2. The application is opposed vide the Replying Adavit dated 4/07/2025. The Court gave directions for the Preliminary Objection to be canvassed by way of written submissions. At the time of writing this Ruling none of the parties had led their submissions. The Preliminary Objection is based on the provisions of Order 4 Rule 1(4) of the Civil Procedure Rules. 3. The Defendant’s Preliminary Objection is founded on Order 4 Rule 1(4) of the Civil Procedure Rules and consequently is on a point of law and hence satises the threshold established in the case of Mukisa Biscuit Manufacturing Co. Ltd –vs- West End Distributors Ltd (1969) EA 696 as to what constitutes a Preliminary Objection. In the case of Sir Charles Newbold, P stated as follows:“ --- A Preliminary Objection is in the nature of what used to be a demurrer: It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18662/eng@2025-07-17 1
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are correct. It cannot be raised if any fact had to be ascertained or if what is sought is the exercise of judicial discretion.” 4. The Defendant is seeking that the suit to be struck out on the ground that the Plainti did not comply with the provisions of Order 4 Rule 1(4) of the Civil Procedure Rules 2010 to the extent that no resolution was led appointing the rm of Wachira Gachoka & Co. Advocates to le the present suit and authorizing John Kamau Njuguna to swear the Verifying Adavit. 5. Order 4 rule 1(4) provides as follows:“ Where the Plainti is a corporation, the Verifying Adavit shall be sworn by an ocer of the company duly authorized under the seal of the company to do so.” 6. The Plainti describes itself as a Limited Liability Company and therefore the deponent of the Verifying Adavit ought to annex the authority as provided for under Order 4 Rule 1(4) of the Civil Procedure Rules. 7. In the case of Leo Investments Ltd v Trident Insurance Company Ltd (2014) eKLR Odunga, J (as he then was) was in agreement with the decision of Kimaru J (as he then was) in the case of Republic vs. Registrar General and 13 Others Misc. Application No. 67 of 2005 [2005] eKLR where the Court stated:“ … Such a resolution by the Board of Directors of a company may be led at any time before the suit is xed for hearing as there is no requirement that the same be led at the same time as the suit. Its absence is, therefore, not fatal to the suit.” 8. The Court of Appeal in the case of Spire Bank Limited v Land Registrar & 2 Others [2019] eKLR also stated as follows:“ … It is essential to appreciate that the intention behind order 4 rule 1 (4) was to safeguard the corporate entity by ensuring that only an authorized ocer could institute proceedings on its behalf. This was to address the mischief of unauthorized persons instituting proceedings on behalf of corporations, and obtaining fraudulent or unwarranted orders from the Court. The company’s seal that is axed under the hand of the directors ensured that they were aware of, and had authorized such proceedings together with the persons enlisted to conduct them. And where evidence was produced to demonstrate that a person was unauthorized, the burden shifted to such ocer to demonstrate that they were authorized under the company seal. With this in mind, we dare say that the provision was not intended to be utilized as a procedural technicality to strike out suits, particularly where no evidence was produced to demonstrate that the ocer was unauthorized.” 9. In the present matter the Plainti at the time of ling the Replying Adavit also led a copy of the resolution attached to the Replying Adavit and annexed as JKN-1. It is dated 25/03/2024 before the suit was led appointing and authorizing James Kamau Njuguna to execute all documents including any Verifying Adavit and/or Supporting and Replying Adavits and witness statements. At the same time appointing Wachira Gachoka and Company Advocates to act for the Plainti. In the premises there cannot be any doubt that the rm of Wachira Gachoka was appointed to represent the Company and James Kamu Njuguna was authorized to plead on behalf of the Plainti and that the Verifying Adavit accompanying the Plaint was properly signed by him. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18662/eng@2025-07-17 2
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10. Having found that the Company ( Plainti) had indeed authorized the ling of the suit, the mere fact there was no board resolution that was led together with the Plaint sanctioning the ling of the suit cannot render the suit fatally defective, See Leo Investments Ltd -vs- Trident Insurance Co. Ltd (supra) where Odunga, J held that failure to le a resolution authorizing ling of the suit does not invalidate the suit as the defect can be rectied by ling the resolution before the suit was heard. To hold otherwise would be to elevate procedural technicalities to a point where they would be an impediment to the administration of justice. Article 159 (2) (d) of the Constitution which Section 19(1) of the Environment and Land Court Act, 2011 echos, enjoins the Court to administer justice expeditiously and without undue regard to technicalities of procedure. 11. The Court in the cases of Fidelity Commercial Bank Limited v Simon Maina Gachie [2016] eKLR and Republic v Registrar General & 13 Others [2015] eKLR held that that the Plainti was not bound to le the board resolution at the time of ling the suit and could do so at any time before the suit was heard. 12. In the present matter the Plainti on 04/07/2025 led the authorization for ling of the suit and appointing the Law rm of Wachira Gachoka Advocates to represent them. Though the Resolution was led after the Preliminary Objection had been taken, it had the eect of rectifying any defects in the suit for want of a resolution authorizing its ling. Various Courts have held such a resolution can be led at any time before the hearing of the case. The Preliminary Objection was intended to bar the Plainti from making amendments to any omissions that may have occurred in the institution of the case. I would opine that just as parties are permitted to amend their pleadings in the course of the proceedings, a party ought to also be permitted to correct a misstep in the procedure adopted in the institution of the suit when no prejudice and/or injustice is occasioned to the opposing party. The signicance of the board authorization of the ling of a suit by a corporate entity is to ensure that they do not have unauthorized persons instituting suits on behalf of companies in respect of which the companies may have no knowledge about yet when liabilities ensue, they would be expected to shoulder the same. 13. The board authorization by the Respondent though led after the Preliminary Objection was taken is properly on record as it was led before the suit was set down for hearing. The Preliminary Objection is not sustainable and I dismiss the same with costs to the Plainti. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 17TH DAY OF JULY 2025 VIA MICROSOFT TEAMS. MOGENI J JUDGE In the presence of: Mr. Wachira for the Plainti Ms. Kemboi for the Defendant Mr. Melita – Court Assistant MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18662/eng@2025-07-17 3
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