[2024] KEHC 9498 (KLR)
The court found that the 1st defendant, being a registered society, should be sued through its officials, which was already done as the 2nd, 3rd, and 4th defendants were sued as such and this was admitted in the defence. Therefore, the objection that the 1st defendant cannot be sued in its own name failed. Regarding...
Source-derived case information.
- Citation
- [2024] KEHC 9498 (KLR)
- Parties
- Plaintiff: Mission SOS International Incorporated; Defendant: Mission SOS Africa INC; Defendant: Dishon Mbugwa; Defendant: Gabriel G. Charo; Defendant: Joseph Lerina Kiptek; Defendant: Margaret Nabwoba
- Court
- High Court
- Court Station
- High Court at Kilgoris
- Jurisdiction
- Kenya
- Case Number
- Civil Suit E005 of 2023
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objections dismissed
- Judges
- F Gikonyo
- Legal Topics
- Capacity to Sue, Capacity to Be Sued, Preliminary Objection, Societies Act, Corporate Personality
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mission SOS International Incorporated
Plaintiff
Mission SOS Africa INC
Defendant
Dishon Mbugwa
Defendant
Gabriel G. Charo
Defendant
Joseph Lerina Kiptek
Defendant
Margaret Nabwoba
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the 1st defendant, a registered society under the Societies Act, can be sued in its own name.
- 2 Whether the plaintiff, a foreign non-profit corporation, has capacity to sue in Kenya.
- 3 Whether the plaintiff, if a society, can sue in its own name.
Ratio Decidendi
The court found that the 1st defendant, being a registered society, should be sued through its officials, which was already done as the 2nd, 3rd, and 4th defendants were sued as such and this was admitted in the defence. Therefore, the objection that the 1st defendant cannot be sued in its own name failed. Regarding the plaintiff's capacity, the court held that the plaintiff had demonstrated it is a non-profit corporation registered in the USA and provided supporting documents. The 1st defendant did not establish that the plaintiff lacked capacity to sue in Kenya. Consequently, all preliminary objections raised by the 1st defendant were dismissed.
Court Disposition
preliminary objections dismissed
Orders
- The preliminary objections raised by the 1st defendant are dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
Mission SOS International Incorporated v Mission SOS Africa INC & 4 others (Civil Suit E005 of 2023) [2024] KEHC 9498 (KLR) (26 July 2024) (Ruling)
Neutral citation: [2024] KEHC 9498 (KLR)
Republic of Kenya
In the High Court at Kilgoris
Civil Suit E005 of 2023
F Gikonyo, J
July 26, 2024
Between
Mission SOS International Incorporated
Plaintiff
and
Mission SOS Africa INC
1st Defendant
Dishon Mbugwa
2nd Defendant
Gabriel G. Charo
3rd Defendant
Joseph Lerina Kiptek
4th Defendant
Margaret Nabwoba
5th Defendant
Ruling
1st defendant cannot be sued 1. By a notice dated December 4, 2023, the 1st defendant raised three preliminary objections, namely: -a.That the 1st defendant is registered society under the Societies Act, and cannot be sued in its name.b.That the plaintiff is not registered under the Companies Act, 2015, and therefore cannot sue in Kenya; andc.That, the plaintiff in its submission stated that it is registered society and therefore cannot sue in its own name.
2. Parties filed submissions to substantiate or deny the objections.
Analysis and determinationNature of preliminary objection 3. A preliminary objection is a pure point of law which does not require probing of evidence to prove; and is capable of decimating the suit (Mukisa Biscuit Manufacturing Co. LtdvWest End Distributors Ltd [1969] E.A. 696).
4. The 1st defendant argued that, it is a society registered under the Societies Act and can only be sued through its registered officials.
5. In paragraph 3 of the plaint, the 2nd, 3rd, and 4th defendants have been sued as registered officials of the 1st defendant. This fact was admitted in the defence and counterclaim. Therefore, the objection is unsuccessful.
6. Similarly, the plaintiff has stated in paragraph 1 of the plaint that it is registered in the USA as a non-profit making corporation and has provided articles of incorporation in support thereof. The 1st defendant did not establish the plaintiff cannot sue in Kenya.
7. In sum, the preliminary objections fail and are dismissed. No order as to costs.
DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 26TH DAY OF JULY, 2024………………………………………………HON. F. GIKONYO M.JUDGEIn the Presence of: -C/A: Leken/NyangaresiWambui for Applicant/Defendants – PresentDr. Khakula for Applicant/Plaintiff – Present