[2006] KEHC 1548 (KLR)
The court found that the applicants, as office bearers of Western School for the Handicap, had demonstrated a common interest among the members regarding the dispute with Kenya Power & Lighting Co. Ltd. over the supply of electricity and refund of deposits. The court was satisfied that the requirements for...
Source-derived case information.
- Citation
- [2006] KEHC 1548 (KLR)
- Parties
- Applicant: Charles Makwata; Applicant: Samson Okiya Aseka; Applicant: Elly Okiya (Suing for and on Behalf of Western School for the Handicap); Defendant: Kenya Power and Lighting Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Case 120 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Ex Parte Chamber Summons for Leave to File Representative Suit
- Outcome
- application granted in part
- Legal Topics
- Representative Suits, Leave of Court, Order 1 Rule 8, Civil Procedure Act Section 3a
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Makwata
Applicant
Samson Okiya Aseka
Applicant
Elly Okiya (Suing for and on Behalf of Western School for the Handicap)
Applicant
Kenya Power and Lighting Co. Ltd.
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Ex Parte Chamber Summons for Leave to File Representative Suit
Legal Issues
- 1 Whether leave should be granted to file a representative suit on behalf of Western School for the Handicap and interested persons.
- 2 Whether the applicants have demonstrated sufficient common interest to justify representative action.
Ratio Decidendi
The court found that the applicants, as office bearers of Western School for the Handicap, had demonstrated a common interest among the members regarding the dispute with Kenya Power & Lighting Co. Ltd. over the supply of electricity and refund of deposits. The court was satisfied that the requirements for representative action under Order 1 Rule 8 were met, particularly as authority to act was exhibited and time for filing suit was running out. The court therefore granted leave to file a representative suit and directed that notice of the institution of the suit be served personally on the defendant.
Court Disposition
application granted in part
Orders
- Leave is granted to the intended plaintiff/applicant to file a representative suit for and on behalf of Western School for the Handicap and any other interested person.
- Costs of this application shall be in the cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA
Civil Misc Cause 120 of 2006
CHARLES MAKWATA
SAMSON OKIYA ASEKA
ELLY OKIYA (Suing for and on Behalf of
WESTERN SCHOOL FOR THE HANDICAPINTENDED)...................................PLAINTIFF/APPLICANT
VS
KENYA POWER AND LIGHTING CO. LTD.............................................................................DEFENDANT
RULING
By an application by way of an ex-parte Chamber Summons, pursuant to the provisions of Order 1 Rule 8 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, the applicant seeks orders:
(a) That the instant application be certified urgent and the same be heard on priority basis.
(b) That leave be granted to the intended Plaintiff/Applicant herein to file a representative suit for and on behalf of WESTERN SCHOOL FOR THE HANDICAP and any other person who may be interested in the matter.
(c) That costs of this application be in the cause.
The application is based on the grounds:
(i) That all the members of WESTERN SCHOOL FOR THE HANDICAP have the same interest in intended suit against the intended defendant.
(ii) That the instant application ought to be heard and allowed before the said suit is filed.
The application is predicated upon the annexed affidavit of Elly Okiya sworn on 24th day of May 2006.
For the applicant, it was argued that Elly Okiya the intended plaintiff/applicant has been authorized to swear this affidavit on behalf of the other intended plaintiffs/applicants. Authority in respect thereof is exhibited as “EO 1”.
That on diverse dates in the year 1997, pursuant to a contract with the Kenya Power & Lighting Co. Ltd., the applicant and other members of the Western School for the Handicap made considerable payments to the said Kenya Power & Lighting Co. Ltd., for the supply of electric power to the school. Todate, the said company has failed to supply the school with electricity or to refund the deposit made towards that end, hence this application.
That the school’s constitution empowers the applicants, who are Chairman, Secretary and Treasurer to file suit for and or behalf of the school.
I have scanned through the application and particularly exhibit “EO1. ” I have equally taken into consideration that the time frame within which the suit must be filed is running out. Accordingly, I grant the application in terms of prayer (b) and ( c ) only.
In terms of Order 1 Rule 8 (2) I direct that the plaintiff give notice to the institution of suit to the defendant by personal service.
DATED and Delivered at Bungoma this 30th day of May, 2006.
N.R.O. OMBIJA
JUDGE