[2022] KEHC 2290 (KLR)

REPULIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL APPEAL NO 49 OF 2021

MEDIAMAX NETWORK LTD.......................................................................APPELLANT

VERSUS

WILLIAM MOMANYI.........................................................................1ST RESPONDENT

RENSON MOMANYI...........................................................................2ND RESPONDENT

NICHOLAS ONCHIRI.........................................................................3RD RESPONDENT

RULING

1. Mediamax Network Ltd (the applicant herein) owns the brand name People Daily. They contend that People Daily is not a registered legal entity. They have now filed a Notice of Motion application dated 26th May 2021in their capacity as Mediamax Network Ltd seeking stay of execution of the judgment of the lower court.

2. The respondents’ raised a preliminary objection dated 21st July 2021 raising the following ground:

1. THAT the Appellant does not have the requisite locus standi to instituted and prosecute the Notice of Motion dated 26. 05. 2021 and the appeal herein and as such the present appeal and the application is fatally defective, incompetent, an abuse of the court process and the same should be struck out and dismissed with costs to the respondents.

3. The respondent submitted that the appellant before the lower court defended the suit as People Daily but now describes itself as Mediamax Network Ltd. They argue that the latter is a strange legal entity. They contend that the appellant was not a party in the trial court and does not have requisite locus standi to originate, file and prosecute the present appeal.

4. The appellant on the other hand submitted that People Daily is not a registered legal entity with capacity to sue and the appellant being the owner of the brand name ‘People Daily’ had an interest in filing the appeal herein on behalf of ‘People Daily’. It relied on the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others [2014] Eklr and Michael Osundwa Sakwa v Chief Justice and President of the Supreme Court of Kenya & Another [2016] eKLR.

5. It is now settled that a preliminary objection should only be raised on a matter of law as was observed by the court in Mukisa Biscuit Manufacturing Company Ltd v West end Distributors Ltd 1969 EA 696 where the principles were captured as follows:

“so far as I am aware a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose the suit. Examples are an objection to jurisdiction of the court or a plea of limitation or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration. Further the court held: “A preliminary objection is in the nature of what used to be a demure. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or of what is sought is the exercise of judicial discretion. The improper raising of points by way of preliminary objection does nothing but unnecessarily increase costs and on occasion confuse the issues. This improper practice must stop.”

6. After considering the preliminary objection and the submissions by the parties, the only issue is whether the appellant has locus standi to file and prosecute the instant appeal.

7. According to the plaint filed before the lower court the defendant is People Daily. The plaintiff now respondent, in their plaint describes People Daily as follows:

“2. The Defendant is a Limited Liability Company and the owner and Publisher of the People Daily, a newspaper with national and international circulation….”

8. The defendant entered appearance and in their defence denied that People Daily was a limited company.

9. There is however no Certificate of Registration that was presented before the court to enable it ascertain the legal capacity of the defendant (People Daily) before the lower court. In my view, it was the duty of the respondents to ascertain the status of the defendant, before instituting the suit against it.

10. In the case of Maurice Ooko Otieno v Mater Misericcordiae Hospital [2004] eKLR the court in discussing the issue of capacity to sue and be sued, observed as follows:

“The law requires that a suit be brought against a legal entity. This is an individual, a Limited Liability Company, the Attorney General – on behalf of government department, certain parastals and or co-operations. Mater Misericodiae Hospital has not been described as a limited liability company. It therefore has no legal capacity to be sued. The plaintiff required to find out what the status of the said hospital is.”

11. In Apex Finance International Limited and Another v Kenya Anti-Corruption Commission NKU HC JR No. 64 of 2011 [2012]eKLR, the court cited a decision of the Supreme Court of Nigeria, Goodwill and Trust Investment Ltd and Another v. Witt and Bush Ltd Nigerian SC 266/2005 which captured the fundamental nature of the issue of capacity. The court observed that:

“It is trite law that to be competent and have jurisdiction over a matter, proper parties must be identified before the action can succeed, the parties to it must be shown to be proper parties whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the suit in limine. When proper parties are not before the court the court lacks jurisdiction to hear the suit, and, “where the court purports to exercise jurisdiction which it does not have, the proceedings before it, and its judgment will amount to a nullity no matter how well reasoned.”

12. It is clear that the respondent/plaintiff casually filed the suit against the respondent without ascertaining whether People Daily had the legal capacity to be sued. It is my finding that ‘People Daily’ was not a proper party as it the lacks legal capacity to be sued. It therefore follows that the appellant, who was not a party to the dispute before the lower court, cannot now institute an appeal on behalf of a non-existing entity. Since People Daily had no legal capacity to be sued, the proceedings before the lower court and the trial magistrate’s judgment will amount to a nullity.

13. I therefore find the preliminary objection to be meritorious and hold that the appellant now described as Mediamax Network Ltd lacks the capacity to institute the application dated 26th May 2021. The preliminary objection is upheld and the respondents’ shall have the costs of the application.

DATED, SIGNED AND DELIVERED AT KISII THIS 9TH DAY OF FEBRUARY, 2022

R. E. OUGO

JUDGE

In the presence of:

Mr. Nyangacha For the Appellant

Miss Ondieki For the 1st 2nd & 3rd Respondents

Kevin Court Assistant