[2021] KEELC 59 (KLR)
The court found that the requirements under Order 1 Rule 13 and Order 4 Rule 1(3) of the Civil Procedure Rules for written authority to act and to swear verifying affidavits are mandatory. However, the court also recognized the constitutional imperative to focus on substantive justice and fair hearing, as provided...
Source-derived case information.
- Citation
- [2021] KEELC 59 (KLR)
- Parties
- Plaintiff: Mwaura Kagua; Plaintiff: Ngumba Mwaniki Sammy Njenga; Plaintiff: Manta Ole Lepaso Napirrug (suing as the Chairman of Normongi Self Help Group); Defendant: County Government of Kajiado; Interested Party: Lupembe Kanchori
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- ? E008 of 2020
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- Plaintiffs granted 60 days to regularize pleadings; suit to be struck out against first and third defendants if not regularized; costs to defendant.
- Judges
- JE Gicheru
- Legal Topics
- Locus Standi, Authority to Sue, Verifying Affidavit Requirements, Pleadings Regularization
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Mwaura Kagua
Plaintiff
Ngumba Mwaniki Sammy Njenga
Plaintiff
Manta Ole Lepaso Napirrug (suing as the Chairman of Normongi Self Help Group)
Plaintiff
County Government of Kajiado
Defendant
Lupembe Kanchori
Interested Party
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the third plaintiff has locus standi to institute the suit on behalf of Normongi Self Help Group.
- 2 Whether the suit is fatally defective for lack of written authority by the third plaintiff and for the verifying affidavit not being properly executed.
- 3 Whether the suit should be struck out or allowed to be regularized.
Ratio Decidendi
The court found that the requirements under Order 1 Rule 13 and Order 4 Rule 1(3) of the Civil Procedure Rules for written authority to act and to swear verifying affidavits are mandatory. However, the court also recognized the constitutional imperative to focus on substantive justice and fair hearing, as provided under Articles 159(2)(d) and 50(1) of the Constitution. Therefore, rather than striking out the suit for procedural defects, the court exercised its discretion to allow the plaintiffs 60 days to regularize their pleadings by filing the necessary written authorities. Failure to comply within the stipulated period would result in the suit being struck out against the first and...
Court Disposition
Plaintiffs granted 60 days to regularize pleadings; suit to be struck out against first and third defendants if not regularized; costs to defendant.
Orders
- Plaintiffs to regularize their pleadings within 60 days.
- If not regularized within 60 days, the suit against the first and third defendants will be struck out.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT KAJIADO
ELC SUIT NO. E008 OF 2020
MWAURA KAGUA…….……………………………….…………..1st PLAINTIFF
NGUMBA MWANIKI SAMMY NJENGA…………………….…2nd PLAINTIFF
MANTA OLE LEPASO NAPIRRUG (suing as the Chairman of
Normongi Self Help Group…………….……………….………….3rd PLAINTIFF
-VERSUS-
COUNTY GOVERNMENT OF KAJIADO…….………….……….DEFENDANT
AND
LUPEMBE KANCHORI………………….……………….INTERESTED PARTY
RULING
This ruling is on the Preliminary Objection dated 11th December, 2020. The Preliminary Objection is as follows;
1. The Applicant’s application is premature, misconceived and an abuse of the Court process.
2. The third Applicant does not have the requisite locus standi to institute this suit on behalf of Normongi Self Help Group and should therefore be struck out with costs.
3. The third Applicant had commenced the suit in his capacity as the Chairman of Normongi Self Help Group without written approval and or authority of the other members of the said Self Help Group as required by law.
In support of the Preliminary Objection, Counsel for the Interested Party filed written submissions dated 10th February, 2021 in which two (2) substantial legal points have been raised as follows;
Firstly, it is urged that contrary to the provision of Order 1 Rule 13(1) and (2) Civil Procedure Rulesthe third Plaintiff who is suing on behalf of a Self Help Group has not filed any written authority signed by members of the Group.
Secondly, it is urged that the verifying affidavit accompanying the plaint is only signed by the second Plaintiff who has no written authority of the other Plaintiffs contrary to Order 4 Rule 1 (3) Civil Procedure Rules.
In reply, the Plaintiffs’ Counsel in submissions dated 11th October, 2021 relied onArticle 258 of the Constitutionwhich provides that every person has a right to institute Court Proceedings acting in the interest of one or more of its members.
Secondly, Counsel said that the second Plaintiff has full authority of his Co-Plaintiffs to file the suit.
Finally, Counsel urges that under Article 159(2) (d)the Court should focus on substantive justice rather than technicalities in this case.
I have carefully considered the Preliminary Objection in its entirety and I make the following findings;
Firstly, I find that the requirement to file the authority to appear on behalf of other Plaintiffs is mandatory under Order 1 Rule 13, Civil Procedure Ruleswhich provides as follows;
13(1) “Where there are more Plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceedings, and in the like manner, where there are more Defendants than one, any one or more of them may be authorized by any of them to appear, plead or act for such other party in any proceeding.
(2) The authority shall be in writing signed by the party giving it and shall be filed in the case”.
Secondly the requirement for written authority to sign the verifying affidavit by one Plaintiff on behalf of his Co-Plaintiffs is mandatory.
Order 4 Rule 1 (3)provides as follows;
“Where there are several Plaintiffs, one of them, with written authority filed with the verifying affidavit, may swear the Verifying Affidavit on behalf of the others”.
Thirdly, it is a draconian move to strike out pleadings because a Court should always try to sustain a suit in view of Article 50 (1)of the Constitution which requires that every party who has a dispute before a Court or Tribunal be given a fair hearing.
A suit should not be struck out if it can be saved by an amendment.
For the above reasons, I will give the Plaintiffs 60 days within which to regularize their pleadings failing which the suit against the first and third Defendants will be struck out.
Costs to the Defendant.
Dated signed and delivered virtually at Kajiado this 8th day of December, 2021.
M.N. GICHERU
JUDGE