[2008] KEHC 2640 (KLR)
The court found that the affidavit evidence did not disclose whether the church was a registered organization or in what capacity the three defendants were being sued. Since the claim arose from a contract, the plaintiff should have sued the individual(s) who negotiated and entered into the contract, not the...
Source-derived case information.
- Citation
- [2008] KEHC 2640 (KLR)
- Parties
- Plaintiff: Kitololo Consultants Ltd; Defendant: Martin Arthur Ssuna; Defendant: Jenifer Mukamburu Mwachofi; Defendant: Peter Kamau Nganga (on their own behalf and on behalf of Local Congregation of World Harvest Evangelistic Ministries International (WHEMI))
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 557 of 2007
- Procedural Posture
- Chamber Summons / Ruling on Ex Parte Application for Leave to File Representative Suit
- Outcome
- application dismissed
- Judges
- JL Osiemo
- Legal Topics
- Representative Suits, Contractual Liability, Organizational Capacity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kitololo Consultants Ltd
Plaintiff
Martin Arthur Ssuna
Defendant
Jenifer Mukamburu Mwachofi
Defendant
Peter Kamau Nganga (on their own behalf and on behalf of Local Congregation of World Harvest Evangelistic Ministries International (WHEMI))
Defendant
Procedural Posture
Chamber Summons / Ruling on Ex Parte Application for Leave to File Representative Suit
Legal Issues
- 1 Whether the plaintiff is entitled to leave to file a representative suit against the defendants on behalf of the church congregation.
- 2 Whether the defendants are proper parties to be sued in a representative capacity for a contractual claim.
Ratio Decidendi
The court found that the affidavit evidence did not disclose whether the church was a registered organization or in what capacity the three defendants were being sued. Since the claim arose from a contract, the plaintiff should have sued the individual(s) who negotiated and entered into the contract, not the congregation in a representative capacity. The court also noted that an application for leave to file a representative suit should be accompanied by a draft plaint to assist the court in determining whether to grant leave. As these requirements were not met, the court declined to grant leave for a representative suit and dismissed the application.
Court Disposition
application dismissed
Orders
- Leave to file a representative suit is declined.
- The application is dismissed with no order as to costs.
Full Case Text
Judgment text and source record
13 paragraphs
KITOLOLO CONSULTANTS LTD……………….......................................................……………..PLAINTIFF
VERSUS
1. MARTIN ARTHUR SSUNA
2. JENIFER MUKAMBURU MWACHOFI
3. PETER KAMAU NGANGA (Suedon their own behalf and on behalf of Local Congregation ofWORLD HARVEST EVANGELISTIC MINISTRIES INTERNATIONAL (WHEMI)
R U L I N G
This is an Ex parte Chamber Summons expressed to be brought under Order 1 Rules 8 (1) and (2) of the Civil Procedure Rules for orders that the Defendants be authorized to represent themselves and all other members of the Local Congregation of world Harvest Evangelistic Ministries International (WHEMI). The application is supported by an affidavit sworn by Austin Salmon Kitololo in which he avers that he is the Managing Director of the plaintiff company and that he is competent to swear the affidavit in support of the application. In the affidavit the applicant avers that the claim in the intended suit is for payment of Kshs. 670,000/= fees being for work done on the Defendant’s church. The plaint names three defendants namely Martin Arther Ssuna, Jenifer Mukamburi Mwachofi and Peter Kamau Nganga being sued on their behalf and on behalf of the Local Congregation of WORLD HARVEST EVANGELISTIC MINISTRIES INTERNATIONAL (WHEMI).
The affidavit evidence does not disclose whether or not the said church is a registered organization and if so registered in what capacity the three defendants are being sued. Although the details of the suit are not disclosed the facts as gathered from the affidavit evidence it is clear that this claim arises out of a contract. That being the case, the plaintiff ought to have sued the person who did the negotiation and entered into the contractual obligation and therefore a representative suit is not tenable. Ordinarily a registered organization such as the church operates its business through its officials if the officials had the authority to enter into such a contract.
I may also add that an application for leave to file a representative suit should be accompanied with a draft plaint to assist the court to decide whether or not to grant the leave sought.
For the above stated reasons I decline to grant the plaintiff leave to file a representative suit and dismiss the application with no order as to costs.
Dated and delivered at Nairobi this 27th day of February 2008.
J. L. A. OSIEMO
JUDGE