[2003] KEHC 716 (KLR)
The court held that the church, being an unincorporated association, could only be represented in legal proceedings by its members if expressly authorized by its constitution, by a resolution of its members, or with leave of the court. The archbishop's reliance on general administrative powers under the church...
Source-derived case information.
- Citation
- [2003] KEHC 716 (KLR)
- Parties
- Plaintiff: James Chabuga; Defendant: Nathan Popo; Defendant: Gabriel Imbali; Defendant: Benjamin Njiri
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1535 of 2002
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- suit struck out with costs
- Judges
- RCN Kuloba
- Legal Topics
- Representative Suits, Unincorporated Associations, Leave of Court, Order 1 Rule 8, Preliminary Objection
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Chabuga
Plaintiff
Nathan Popo
Defendant
Gabriel Imbali
Defendant
Benjamin Njiri
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the archbishop could institute legal proceedings on behalf of the church without express constitutional authority or leave of the court.
- 2 Whether the suit was properly constituted as a representative suit under Order 1 rule 8 of the Civil Procedure Rules.
- 3 Whether the absence of leave of court rendered the suit incompetent.
Ratio Decidendi
The court held that the church, being an unincorporated association, could only be represented in legal proceedings by its members if expressly authorized by its constitution, by a resolution of its members, or with leave of the court. The archbishop's reliance on general administrative powers under the church constitution was insufficient to confer authority to sue on behalf of the church. Since the suit was between members with divergent interests and was not properly constituted as a representative suit under Order 1 rule 8 of the Civil Procedure Rules, and no leave of court had been sought or obtained, the suit was incompetent and a non-starter. The preliminary objection was therefore...
Court Disposition
suit struck out with costs
Orders
- The preliminary objection is sustained.
- The suit is struck out with costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1535 OF 2002
JAMES CHABUGA …….............…………………………… PLAINTIFF
VERSUS
NATHAN POPO ………………………….………….1ST DEFENDANT
GABRIEL IMBALI ……………………….………….. 2ND DEFENDANT
BENJAMIN NJIRI ……………………….………….. 3RD DEFENDANT
RULING
It is agreed on all sides, that the archbishop has sued a section of the members of his church, and in doing so, he is purporting to act on behalf of the church.
The church is an unincorporated association with a certain membership, governed by its constitution.
The constitution of the church does not deal with matters to do with legal proceedings by or against the church or its members.
But it is said on his behalf that under Section 6. 1.1 of that constitution his administrative, financial, spiritual and social and general development duties, include taking legal proceedings and defending legal proceedings, by or against the church or its members. This view is overstretching the duties of the archbishop. Legal proceedings is a major function and cannot be camoflouged under “administration” or “social and general development”.
In the absence of a provision in the church constitution regarding legal proceedings, such proceedings can only be undertaken or defended on behalf of the members or some of them, with their leave under a church resolution, or with the leave of the court.
You see, once it is conceded that these proceedings are between some members of the same church or the one side, and against another set of members on the other, it is inaccurate to say that the archbishop in suing, he is acting on behalf of the church, because the church is, in fact split over the issue of being litigated. So, different interests are involved; and the one group with similar or same interests requires to be identified on one side and be authorized to move as representing those with the same or similar interests, against the other group with interests divergent from those of the others but similar in their own camp.
It is for these reasons that this suit is within Order 1 rule 8 of the Civil Procedure Rules, and it must be properly intituled as a representative suit within that provision, and leave of the court sought and obtained (if merited). In the absence of this leave, as it is the case here, the suit is a non-starter.
Accordingly, the preliminary objection is sustained, and the suit is struck out with costs. It is so ordered, ex tempore.
R. KULOBA
JUDGE
24. 6.2003