[2022] KEHC 15256 (KLR)

Naphas Mmenya t/a Muamala Enterprises v Kibisu & 2 others (Sued on their own behalf and on behalf of Ministry of Works Sports Club) (Civil Appeal E002 of 2021) [2022] KEHC 15256 (KLR) (Civ) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15256 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E002 of 2021

JK Sergon, J

November 11, 2022

Between

Naphas Mmenya t/a Muamala Enterprises

Appellant

and

Linus Kibisu, Christine Kirimi & Linet Afandi (Sued on their own behalf and on behalf of Ministry of Works Sports Club)

Respondent

(Being an appeal of the whole of the judgment and decree delivered on 2nd December 2020 at the Chief Magistrate’s Court at Nairobi by the Honourable E. M. Kagoni (Mr.) in Chief Magistrates Civil case No.4714 of 2018)

Judgment

1. The respondent who was the plaintiff in CMCC No 8533 of 2011 instituted the suit vide against the appellants through an amended plaint dated May 7, 2018 seeking for the sum of Kshs 317,000/= as well as costs of the suit and interests.

2. The appellant pleaded in its plaint that through a local service order number XXXX dated October 2, 2015 the respondent procured the services of the appellant to carry out external works on the children’s corner situate at its directorate located in South C within Nairobi County and agreed on the contract price was Kshs 1,500,000/=.

3. The appellant further pleaded in its plaint that the respondent further requested the appellant to carry out some additional work at the children’s corner and they carried out the extra works assigned to him to completion and handed over the site to the respondent.

4. The appellant avers that as a result of carrying out the additional works ,he incurred costs of Kshs 1,817,000 however the respondent only paid him Kshs 1,500,000/= leaving a balance in the sum of Kshs 317,000/=

5. The respondents filed their statement of defence denying the entire claim. The matter proceeded for hearing and judgment was eventually the appellant’s suit was dismissed with costs awarded to the defendants.

6. The appellant being aggrieved preferred this appeal and putforward the following grounds:i.That the learned magistrate erred in law and fact by finding that the appellant had sued a wrong party.ii.That the learned magistrate erred in law and fact by holding that the Ministry of Works ought to have been joined in the suit.iii.That the learned magistrate erred in law and fact by finding that the Attorney General ought to have been joined in the suit.iv.That the learned magistrate erred in law and fact by holding that the plaintiff has no claim against the defendant.v.That the learned magistrate erred in law and fact by failing to appreciate that the Ministry of Works Sports Club is an unincorporated legal person.vi.That the learned magistrate erred in law in considering matters that were not pleaded by any of the parties.vii.That the learned magistrate erred in law and fact by failing to appreciate that the Ministry of Works Sports Club is a distinct entity from the Ministry of Works Sports Club is a distinct entity from the Ministry of Public Works.viii.That the learned magistrate erred in law and fact in failing to consider the evidence, relevant authorities and submissions by the appellant thus arriving at a wrong conclusion.

7. The appeal was canvassed by way of written submissions which were filed and exchanged between the parties. I have also considered the rival written submissions. The issues for determination put forward by both parties revolve around the following issues:a)Whether the learned magistrate was right in holding that the appellants sued the wrong partyb)Who is entitled to cost.

8. On the first issue, the appellant submitted that the magistrate failed to recognize that the Ministry of Works Sports Club is an unincorporated legal person that is recognized in section 2 of the Societies Act and also failed to recognize the said sports club is not under the care of the Ministry of Public Works and that the sports club has a board of directors that is responsible for managing its own affairs.

9. The appellant further submitted that the Ministry of Works Sports Club is not a body corporate ,therefore it has no legal capacity to sue and be sued in its own name and that the only acceptable way to file a suit against an unincorporated legal person is through its official and /members.

10. On this the appellant relied on the case Peter Ngugi Geoffrey & 3 Others v Mithini SDA Church [2019] eKLRSection 3 of the Societies Act shows that the defendant does not have the legal capacity of suing or being sued in its own name. In the case of John Otteyo Amwayi & 2 others v Rev George Abura & 2 others – Civil Appeal No 6339 of 1990, the Court held as follows:'The Societies Act does not contain provisions with regard to the presentation and prosecution of suits by or against the unincorporated societies. It would appear to me that the legislature did not intend that suits be brought by or against those societies in their own names.' In the plaint the defendant is described as a church registered under the Societies Act. The plaint has not exhibited any form of registration in respect to the defendant’s entity. It is trite that a non juristic person is incapable of suing or being sued in its name. If indeed the defendant is registered under the Societies Act, then the right thing was to have it sued through its officials. None has been disclosed. In the instant matter the suit was filed against a religious organization. It is not a body corporate which would then mean it would be sued as a legal personality. That being so it lacks the capacity to be sued in its own name. A society can only sue or be sued through its officials. That is the law'

11. It is the appellant’s submissions that taking into consideration the distinction between the Ministry of Works Sports Club and the Ministry of Public Works, the suit was filed against the right party and that the Attorney General did not need to be joined to the case because there was no claim against any government.

12. On the other hand, the respondent’s witness Linet Afandi testified on behalf of the respondents confirmed that she is civil servant employed by State of infrastructure as senior hospitality officer and was attached to the Ministry of Lands.

13. The respondent cited section 12(1)-(2) of the Government Proceedings Act as follows:No proceedings instituted in accordance with this part of this Act by or against the Attorney-General shall abate or be affected by any change in the person holding the office of Attorney-General. [Act No 21 of 1966, First Sch.

14. It is clear that the respondents are employees of the Ministry of Public Works and they were attached to the Ministry of Public Works Sports club therefore acting as the Ministry of Public Works Sports Club therefore acting as the parent ministry agents at the Ministry of Works Sports Club and hence they are not the principal.

15. Further to that the appellant did not exhibit any form of registration in respect of the defendants in the lower court whether they were registered under the Societies Act and it is trite law that a non-juristic person is incapable of suing, being sued in its name or through its official if it is a registered society.

16. I also rely on the case of Peter Ngugi Geoffrey & 3 Others v Mithini SDA Church (supra)Section 3 of the Societies Act shows that the defendant does not have the legal capacity of suing or being sued in its own name. In the case of John Otteyo Amwayi & 2 others vs Rev George Abura & 2 others – Civil Appeal No 6339 of 1990, the court held as follows:'The Societies Act does not contain provisions with regard to the presentation and prosecution of suits by or against the unincorporated societies. It would appear to me that the legislature did not intend that suits be brought by or against those societies in their own names.' In the plaint the defendant is described as a church registered under the Societies Act. The plaint has not exhibited any form of registration in respect to the defendant’s entity. It is trite that a non juristic person is incapable of suing or being sued in its name. If indeed the defendant is registered under the societies Act, then the right thing was to have it sued through its officials. None has been disclosed. In the instant matter the suit was filed against a religious organization. It is not a body corporate which would then mean it would be sued as a legal personality. That being so it lacks the capacity to be sued in its own name. A society can only sue or be sued through its officials. That is the law'

17. In my view the Ministry of Works ought to have been enjoined in this suit owing to the fact that the local service order which procured the services of the appellant in this suit as well as the verification report of external works dated May 20, 2016 all show that the contract was between the appellant and the Ministry of Works and that the respondents were merely the staff of the said corporate body.

18. I am in agreement with the trial court that the appellant had no claim against the respondents in the capacity he has sued them.

19. However, this court is also aware that section 12 (1) of the Government Proceedings Act provides that subject to the provisions of any other written law, civil proceedings by or against the Attorney General as the case may be .It is clear from the above provisions that the issuance of a statutory notice was key.

20. That there are rules of procedure that prohibit the dismissal of a suit due to misjoinder or non-joinder whereas on the other hand there is requirement that suits against the government shall be instituted against the Attorney General .The Court of Appeal in Moses Masika Wentangula v John Koyi Waluke & 2 Others [2008] eKLR cited the decision of Mwalagaya v Bandali [1984] KLR 751 wherein it was held that it is trite law that where there is a conflict between a statute and the rules of procedures ,the statute must prevail.

21. I am in agreement with the trial court that the failure to enjoin the attorney general in this suit who was a necessary party was fatal to the case.

22. In the end, this appeal is found to be without merit. It is hereby dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 11TH DAY OF NOVEMBER, 2022. ......................................JK SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent