Mission SOS International Incorporated v Mission SOS Africa INC & 4 others (Civil Suit E005 of 2023) [2024] KEHC 9498 (KLR) (26 July 2024) (Ruling) Neutral citation: [2024] KEHC 9498 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KILGORIS CIVIL SUIT E005 OF 2023 F GIKONYO, J JULY 26, 2024 BETWEEN MISSION SOS INTERNATIONAL INCORPORATED ........................ PLAINTIFF AND MISSION SOS AFRICA INC ........................................................... 1ST DEFENDANT DISHON MBUGWA ........................................................................ 2ND DEFENDANT GABRIEL G. CHARO ...................................................................... 3RD DEFENDANT MARGARET NABWOBA ............................................................... 4TH DEFENDANT JOSEPH LERINA KIPTEK ............................................................. 5TH DEFENDANT RULING 1st defendant cannot be sued 1. 2. By a notice dated December 4, 2023, the 1st defendant raised three preliminary objections, namely: a. That the 1st defendant is registered society under the Societies Act, and cannot be sued in its name. b. That the plaintiff is not registered under the Companies Act, 2015, and therefore cannot sue in Kenya; and c. That, the plaintiff in its submission stated that it is registered society and therefore cannot sue in its own name. Parties filed submissions to substantiate or deny the objections. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/9498/eng@2024-07-26 1
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Analysis and determination Nature of preliminary objection 3. A preliminary objection is a pure point of law which does not require probing of evidence to prove; and is capable of decimating the suit (Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] E.A. 696). 4. The 1st defendant argued that, it is a society registered under the Societies Act and can only be sued through its registered oficials. 5. In paragraph 3 of the plaint, the 2nd, 3rd, and 4th defendants have been sued as registered oficials of the 1st defendant. This fact was admitted in the defence and counterclaim. Therefore, the objection is unsuccessful. 6. Similarly, the plaintiff has stated in paragraph 1 of the plaint that it is registered in the USA as a non-profit making corporation and has provided articles of incorporation in support thereof. The 1st defendant did not establish the plaintiff cannot sue in Kenya. 7. In sum, the preliminary objections fail and are dismissed. No order as to costs. DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 26TH DAY OF JULY, 2024 ……………………………………………… HON. F. GIKONYO M. JUDGE In the Presence of: C/A: Leken/Nyangaresi Wambui for Applicant/Defendants – Present Dr. Khakula for Applicant/Plaintiff – Present https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/9498/eng@2024-07-26 2
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