[2013] KEHC 4236 (KLR)
The court found that while the absence of a company resolution authorizing the commencement of proceedings is a valid legal point, it would be too drastic to strike out the originating summons without giving the applicant an opportunity to cure the defect. The court therefore directed that the requisite company...
Source-derived case information.
- Citation
- [2013] KEHC 4236 (KLR)
- Parties
- Applicant: Malindi Musketeers Ltd; Respondent: The Hon. Attorney General; Respondent: The Land Registrar, Kilifi; Respondent: Ernest Kahiro Kimani
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 186 of 2011
- Procedural Posture
- Civil Suit / Ruling on Notice of Motion to Strike Out Originating Summons
- Outcome
- Application to strike out originating summons not granted; applicant given leave to file company resolution within 14 days.
- Judges
- CW Meoli
- Legal Topics
- Striking Out Pleadings, Corporate Authority to Sue, Originating Summons, Registered Land Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Malindi Musketeers Ltd
Applicant
The Hon. Attorney General
Respondent
The Land Registrar, Kilifi
Respondent
Ernest Kahiro Kimani
Respondent
Procedural Posture
Civil Suit / Ruling on Notice of Motion to Strike Out Originating Summons
Legal Issues
- 1 Whether the suit should be struck out for want of a company resolution authorizing commencement of proceedings.
- 2 Whether the defect of lack of resolution can be remedied at this stage.
Ratio Decidendi
The court found that while the absence of a company resolution authorizing the commencement of proceedings is a valid legal point, it would be too drastic to strike out the originating summons without giving the applicant an opportunity to cure the defect. The court therefore directed that the requisite company resolution be filed within 14 days, allowing the applicant to regularize the proceedings. The court also noted that costs would be in the cause and that there was no violation of Section 6 of the Civil Procedure Act after confirming the status of a related file.
Court Disposition
Application to strike out originating summons not granted; applicant given leave to file company resolution within 14 days.
Orders
- The applicant shall file the requisite company resolution authorizing commencement of proceedings within 14 days of the ruling date.
- Costs will be in the cause.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
HIGH COURT CIVIL SUIT NO. 186 OF 2011 (OS)
IN THE MATTER OF: THE REGISTERED LAND ACT CAP 300 LAWS OF KENYA
B E T W E E N
MALINDI MUSKETEERS LTD …............PLAINTIFF/APPLICANT
VERSUS
THE HON. ATTORNEY GENERAL
THE LAND REGISTRAR, KILIFI
ERNEST KAHIRO KIMANI..DEFENDANTS/RESPONDENTS
RULING
I have considered all the arguments made in respect of the Notice of Motion filed on 7th May, 2012 and expressed to be brought under Order 2 rule 15 of the Civil Procedure Rules, on grounds which on the face of it are matters of evidence to be determined at the trial (see grounds 1 to 4 on the face of the application.) At the hearing of the application however, counsel for the 3rd defendant introduced a fresh and pure point of law. This point in my view is well taken as it does not appear that the requisite resolution authorizing commencement of these proceedings is annexed to the plaint. Neither is it pleaded.
However, I consider that it would be drastic to strike out the originating summons peremptorily without affording the applicants a chance to remedy the defect. For this reason, I will direct that requisite resolution by the company be filed within 14 days of today's date.
Costs will be in the cause.
I regret the delay in delivering this ruling, occasioned in part by my search for the file in a similar matter filed by the applicants as HCCC No. 182 of 2011 (OS). The intention was to satisfy myself that the provisions of Section 6 of the Civil Procedure Act have not been violated. The file has only recently been traced.
In addition, I have been destabilized by pressure from duties outside my court station in the recent months.
Delivered and signed at Malindi this 15th day of April, 2013 in the absence of parties.
Court clerk – Evans.
C. W. Meoli
JUDGE