[2003] KEHC 599 (KLR)
The court found that the suit had been properly amended to include the Baptist Convention of Kenya Registered Trustees as the 2nd Plaintiff, a body corporate capable of suing under the Land (Perpetual Succession) Act. The continued presence of the 1st Plaintiff (the unincorporated society) was a superfluity and was...
Source-derived case information.
- Citation
- [2003] KEHC 599 (KLR)
- Parties
- Plaintiff: Baptist Convention of Kenya; Defendant: Bedan Kanyoroku; Defendant: Pastor Joseph Kamau Githee; Defendant: Pastor Francis Mucheru; Defendant: Joseph Njoroge; Defendant: Jesse Njoroge Thuo; Defendant: Nehemiah Kigoro Bedan; Defendant: Elena Wanja; Defendant: Josephine Wanjiru Bedan; Defendant: Ruth Nduta; Defendant: Paul Nduati
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 958 of 1999
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed; first plaintiff struck off
- Judges
- AI Hayanga
- Legal Topics
- Capacity to Sue, Representative Suits, Amendment of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Baptist Convention of Kenya
Plaintiff
Bedan Kanyoroku
Defendant
Pastor Joseph Kamau Githee
Defendant
Pastor Francis Mucheru
Defendant
Joseph Njoroge
Defendant
Jesse Njoroge Thuo
Defendant
Nehemiah Kigoro Bedan
Defendant
Elena Wanja
Defendant
Josephine Wanjiru Bedan
Defendant
Ruth Nduta
Defendant
Paul Nduati
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether a society can sue in its own name or only through its officials.
- 2 Whether failure to comply with Order 1 Rule 8 (representative suits) invalidates the plaint.
- 3 Whether the existence of other pending suits on the same matter renders this suit incompetent.
Ratio Decidendi
The court found that the suit had been properly amended to include the Baptist Convention of Kenya Registered Trustees as the 2nd Plaintiff, a body corporate capable of suing under the Land (Perpetual Succession) Act. The continued presence of the 1st Plaintiff (the unincorporated society) was a superfluity and was ordered struck out under Order 1 Rule 10(2). The court held that the suit was not a representative suit requiring compliance with Order 1 Rule 8, as the plaint did not disclose such a capacity. On the issue of pending suits, the court determined that evidence would be required to establish whether the matters were consolidated and withdrawn, and whether Section 6 of Cap 21...
Court Disposition
preliminary objection dismissed; first plaintiff struck off
Orders
- The preliminary objection is refused.
- The first Plaintiff (Baptist Convention of Kenya) is struck off as a party to the suit.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 958 OF 1999
BAPTIST CONVENTION OF KENYA..………….……..……..PLAINTIFF
V E R S U S
BEDAN KANYOROKU………………………….……….1ST DEFENDANT
PASTOR JOSEPH KAMAU GITHEE.…………………2ND DEFENDANT
PASTOR FRANCIS MUCHERU ……………………….3RD DEFENDANT
JOSEPH NJOROGE……………………………………..4TH DEFENDANT
JESSE NJOROGE THUO ……………………….……..5TH DEFENDANT
NEHEMIAH KIGORO BEDAN………………………….6TH DEFENDANT
ELENA WANJA…………………………………………..7TH DEFENDANT
JOSEPHINE WANJIRU BEDAN……………………….8TH DEFENDANT
RUTH NDUTA…………………………………………….9TH DEFENDANT
PAUL NDUATI…………………………………………..10TH DEFENDANT
R U L I N G
In this Preliminary Objection Mr. Kimani for the Respondent raises the objection that this suit is incompetent because the 1st Plaintiff being a society merely cannot sue in its own name but only through its officials. That such cannot be amended, secondly, that this being a representative suit Order 1 Rule 8 ought to have been complied with, thirdly that there are pending two other suits on the same matter i.e. CMCC No. 3948 of 1994 and CMCC No. 8446 of 1993. In reply Mrs. Kiarie for Applicant/Respondent objects to the Preliminary Objection saying first that the plaint had been amended and there is an order by Deputy Registrar on 11. 10. 2000 hence objector is now estopped, secondly that any failure to comply with Order 1 Rule 8 does not nullify the plaint and lastly that matters in Chief Magistrate’s Court were in fact consolidated under CMCC No. 3940/1994 and withdrawn so what remains is not factually same in issues with the present case. I have looked at these objections and the arguments presented to controvert them. There is evidence that the plaint in this suit is the amended one with Baptist Convention of Kenya Registered Trustees as 2nd Plaintiff. This is proper as it means that the Convention can now be sued under that name it being a body Corporate under Land (Perpetual Succession) Act Cap 286 of the Kenya Laws. Having done that the first Plaintiff ought not be a Plaintiff any more in the form it is, I think the existence of paragraph 1 in the amended plaint an irritating superfluity and ought to be struck off which this Court can order on its own under Order 1 Rule 10(2) and I so order. As for 2nd objection I am not able to discern either representative suit in the plaint what I see is a number of Defendants joined as Defendants in the suit so is the plaint.
The last point is not a clear cut matter but still evidence is to be led to show that the two cases were consolidated and one withdrawn and more that the conditions of Section 6 of Cap 21 are existent. I think this Preliminary Objection cannot succeed. Preliminary Objection must be based on a clear indisputable point of fact and law. Objection refused but first Plaintiff be struck off. Costs in the cause.
DATED this 5th day of August 2003.
Read to -
Mrs Kiarie for Plaintiff
Mr. Kimani for Defendant
On 5th August 2003
A.I. HAYANGA
JUDGE
A.I. HAYANGA
JUDGE