[2008] KEHC 941 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI (NAIROBI LAW COURTS)

CIVIL CASE 2173 OF 2001

NDONGORO GENERAL CONTRACTORS………..………..PLAINTIFF

VERSUS

KENYA EPISCOPAL CONFERENCE SECRETARIAT......DEFENDANT

RULING

it sought to set up a fresh cause of action which was time barred by the Limitation of Actions Act (Cap.22) Visram J. held inter alia that:-

(1) It is an established principle of law that the power to allow or disallow an amendment is a discretionary power provided that the Court exercises it upon such terms as are just.

(2) The period of limitation do not counter any right to a defendant but only imposes an obligation on the part of the plaintiff to bring his claim within the stipulated period once the claim is brought within the period amendments can be allowed even outside the period of limitation in the specified situations.

(3) Amendments outside the period of limitation may be allowed in cases where they flow from the same set of facts or substantially the same facts within the claim originally pleaded”.

On the Courts assessment of the facts herein after going through the papers presented to court by either scale, their written skeleton arguments, case law cited and the entire court record this court is of the opinion that there are matter of common round to both sides which this Court cannot ignore when determining the issues in controversy herein. These are:-

(1) There is no dispute that the original plaint filed herein dated 13th December 2001 and filed on 18th December 2001 titled the defendant as the Kenya Episcopal Conference and described it in paragraph 2 of the said plaint thereof registered a society registered in Kenya under the societies Act Chapter 108 Laws of Kenya.

(2) There is no dispute that it has now been demonstrated by the defendant vide documents annexed to the applications subject of this ruling that the defendant as titled in the original plaint and described in paragraph 2 thereof is not a society and has in fact never been registered as such.

(3) There is no dispute that the same plaintiff moved to this court and sought leave to amend the said plaint and was granted such leave the amended plaint titled the defendants as. The Arch Bishop of Nairobi Raphael Ndingi Mwana A’nzeki, the general secretary Father Vincent Wambugu (Kenya Episopal Conference Secretariat whereas in paragraph 2 thereof the new title tees were described as the Chairman and Secretary of Kenya Epsocipal Conference a society registered in Kenya under the societies Act Chapter 108 Laws of Kenya.

(4) There is no dispute that the titling and description given to the defendant in both pleadings is what has prompted the defendant to present the application subject of this ruling arguing that the defendant as titled and described in both pleadings is non-existent and therefore incapable of being sued and by reasons of this the plaintiff stands non suited.

(5) It is common ground that all the case law cited by the defendant in support of their argument deals with incapacity to sue and be sued by non legal entities.

(6) It is also common ground that all these authorities are decisions of Courts of concurrent jurisdiction and therefore not binding on this court and as such they are of possessive authority only.

(7) It is also common ground that as mentioned in the background information outlined above that the said amended plaint was introduced by an order of court which deemed it to be filed upon the grant of an order for leave to amend. The said prayer for deeming it to be filed and served forgot to add a rider that it be deemed so subject to payment of court fees. Failure to pay for a court pleading is improper but that in itself is not fatal to the said pleading. It is curable by asking the defaulting party to pay athe requisite court fees. It therefore follows that the amended plaint through improper has not been faulated on account of non-payment and should it survive the axe its imperfect state will be perfected by requiring the plaintiff to pay the requisite court fees.

(8) It is also not in dispute that to fortify the defendants stand on their allegations of the nullity of both the original plaint and the current amended plaint, the defendant has gone ahead to annex annexture VWM2 which is a certificate of incorporation under the land perpetual succession Act Chapter 286 a reading of the same prima facie reveals that the ……………..was in comperating as a body corporate an entity by the name of Registered trustees conference.

The names of the trustees named are four namely:-

(a) The Most Revered Maurice Michael Otunga.

(b) The Most Reverend The Most Revered Caesar Gatimu.

(c) The Most Reverend Raphael Ndingi

(d) The most Reverend John Njenga the registration was affected on the 15th day of January one thousand nine hundred and seventy three.

Since then there have been changes in the trust ship of the said entity effected as follows.

(a) On the 5th day of March one thousand and nine hundred and ninety eight) 5. 3.98) the most Rev. Zacchaeus Okech was appointed as a trustee in the place of the most Rev. Caesa versus Gatimu .

(b) On 23rd day of April one thousand nine hundred and ninety eight (23. 4.98) one Right Rev. Urbanus Riako was appointed as a trustee in the place of His, Grace Arch Bishop John Njenga.

(c) On 8th day of June one thousand nine hundred and ninety eight (8. 6.98) one John Njue (now) cardinal, was appointed as trustee in the place of Maurice Michael Cardinal Otunga.

From the above it is clear that the current trustees of the said body complete are:-

(a) The most revered Raphael Ndingi

(b) Most Revered Zacchaeus Okoth

(c) Right Revered URBanus Kioko

(d) John Njue (now) Cardinal.

This court has judicial notice of the fact that one Right Rev. Urbanus Kioko is now deceased. His death was a matter of public. No to riety as it was flashed in the public media. Only one of the surviving three has been named not as a trustee but as a chairman.

(9) there is no dispute that the further amended defence was introduced by prayer (b) of the very application subject of this ruling . it sought an order that upon granting the order for the core to further amend the defence the draft copy to be treated as being duly filed and served. Once again the prayer and the consent granting it did not provide a rider that subject to payment of court fees observed in the case of the amended plaint the same observation goes for the further amended defence as well so that should the proceeding survive the axe then the imperfect state can be perfected by a requirement that the defaulting party do pay the court fees.

(10) It is common ground that the plaintiff’s response to the defendant application is by way of grounds of opposition which raise point of law namely the incompetence of the application, applicants being guilty of unreasonable delay and the supporting affidavit to the application being incompetent and in breach of the law. This means that the plaintiff /respondent is not contesting the factual aspect of the application namely the exhibition of the certificate of incorporation mentioned above.

(11) It is common ground and as endanced from the salient features of the plaintiff/respondents skeleton arguments that the plaintiff has not made submission on the in competence of the application and the unreasonable delay, neither as the supporting affidavit. But that not withstanding the court is not precided from revisiting the record to determine the existence of any incompetence if any.

(12) It is common ground that the plaintiff/respondent has not contracted the case law relied upon by the defendant/applicant to the effect an incorporated solely is incapable of sung and being sued instead they have placed reliance in case law on amendments namely to the effect that amendments can be effected at any stage of the proceedings, even where the parcel of limitation has set in so long as these do not introduce a new cause of action firstly and secondly that there must be flowing directly from the same couse of action already on board.

(13) It is common ground and it is not in dispute that the plaintiff/respondent has not put in a counter application seeking leave of court to amend.

From the above set out common grounds it’s clear that the rival arguments herein prevent this court with both issues of technical irregularities as well as the merits of the application subject of the ruling. Those touching on irregularities deal with the competence of the pleadings filed where as the merit aspect will deal with issues of whether the applicant demonstrated sufficient grounds to merit the relief sought or, whether the same has been ousted by the respondent grounds of opposition. Due consideration has been duly made by this court which proceed to make the following findings.

(1)In both the original plaint and the amended plaint the plaintiff is issued Ndongoro General Contractors limited. In paragraph 1 of both pleadings the plaintiff described as a limited liability company. The verifying affidavit annexed to 10th the original plaint and the amended pliant in paragraph 1 thereof it is deponed thus“that from managing Director of the plaintiff company in this mater hence the right person to swear this affidavit” the plaintiff being a limited liability company, this court has judicial notice of the fact that it is a body corporate with power to sue and be sued. The court also has judicial notice of the fact that being bodily corporate it transacts its business through either a Board of Directors or shareholders resolution. This being the core necessary for the deponent of the verifying affidavit to annex to the said affidavit of authority to file the suit as well as authority to the managing directors to depone the verifying affidavit. The requirement of law concerning full authority is found in order 1 rule 12(2) CPR and its to the effect that it has to be given in writing and filed in court. In the absence of proof of such giving and filing in court the authority to depone is lacking and if the authority to depone is lacking then th3 verifying affidavit is in competent and there is no alternative but to struck it out. Once struck out then the plaint become incompetent the same continues the provision of order VII rule 1(2) which require that the plaint be accompanied by a verifying affidavit deponed by the plaintiff. This is fatal to the plaint save that under sub rule 3 the court has discretion to allow the defaulting party to comply by filing another verifying affidavit in the premises the court moves to struck out the verifying affidavit herein. The decision whether to allow the defaulting party to comply or not will depend on whether the plaint will pay the legality test or not.

(2)Next the court moves to the application subject of this ruling dated 1st November 2007 and filed on 2nd November 2007. it is observed that the parties are described as in the main pleading of plaintiff and defendants there is no indication as to which party is applying in the application and which party is responding to the application. For this reason it is guilty of the offence of misdescription. It is therefore a proper candidate for striking out notwithstanding that the irregularity in manner and could have been rectified orally in court had the amendly been defaulted earlier on by the court before presentation or original.

Tuning to the supporting affidavit paragraph 1 thereof reads;-

“That from the secretary general of the Kenya Episcopal Conference Catholic Secretariat and one of the defendants herein duly authorized and competent to swear this affidavit on behalf of the other defendant.” The authority to so depone from the Arch Bishop of Nairobi Raphael Ndingi Mwana A. Nzeki has not been exhibited. As such there is no compliance with the provision of order 1 rule 12(20 CPR as none has been annexed and or filed in the court file either generally for the whole case or committed to the application. The resultant effect of this none compliance has been explained by the CA in the case of RESEARCH INTERNATIONAL EAST AFRICA LIMITED VERSUS JULIUS ARISI AND 213 OTHERS NAIROBI CA 321 OF 2003 decided by the court of appeal on the 27th day of April 2007. The result is that the affidavit can only be attributed to the deponent of it meaning that Arch Bishop Raphael Ndingi Mwana A. Nzeki has not supported the application. That however in mind not have interrelated the application as it would have been anchored on the deponent of Father Wambugu had it not been misdescribed the application is therefore a proper candidate for striking out reasons of misdescription.

The question to be asked is whether the plaintiff is to have a walk over as regard the attack to this pleadings by virtue of the faulting of the application or whether there is some other avenue through which the court can invoke to deal with the matter finally in view of presence of allegation of incompetence of the plaint right from its reception the answer to this is that where an allegality over nullity to exist there is no way a court of law can parch itself on the judicial fence, fold its arm a kimbo or place them on its heads and allow illegalities and nullities to flourish. As per the abstentious of Nyamu J. in his lordship decision in the case of the correct position in law is that there have to be dealt with firstly and promptly.

The authority to so deed is found both in section 3A of the CPA under which this court moves on its own motion or at the invitation of a litigant. And also under order 1 rule 10(20 where the court has power either on the application of the parties of the or an own motion. Where the court moves on own motion it has to confirm itself to the pleadings in the circumstances of this case will be the amended plaint and the further amended defence of compliance in amended plaint is the description of the defendant on a society. Where as of importance in the further amended defence is that there are trustees in existence which fault was not been dispute by the plaintiff which plaintiff has attempted to go round it by saying that it is simply an issue of misdescription of a variety which misdescription can be cared by an amendment.

The question for determination is whether the misdescription is fatal or can be lived by an amendment in the right of case law cited the plaintiff case is not one of misdescription but arise of a nullity abolition. The decision relied upon by the applicant as noted review on are decision of courts of convenient jurisdiction. They are therefore not binding in this court. This court is situated to reverse it the matter in it’s own, re asses the law and arrive at its own conclusion on the matter. Save that where the said decision of courts of convenient jurisdiction state the correct position in law, there is no reason to depart from them.

As noted earlier the applicants stand is that the official trustee should have been sued.

The land/perpetual succession Act cap 286 under which the subject by instrument of trust ship was created appear to have been replaced in terms of the chapter number. But the content with notification now appears in the trustees perpetual succession Act chapter 164 laws of Kenya. Infact there is a note to the effect that the Act had been published as cap 286. of relevance to ownership is section 3(3) of cap 164 laws of Kenya. It reads:-

“3 (3) the trustees shall thereupon become a body corporate by the name described in the certificate, and perpetual succession and a common seal and power to sue and be sued in their corporate name and subject to the condition and directions contained in the certificate to hold and acquire and by visionment under the common seal to convey transfer assign change, and claims any movable or immovable property or ay interest therein or have after belonging to or held for the benefit of the trust concerned in the same manner and subject to such restriction and provision as trustees might so do without incorporation if the certificate of incorporation shall vest in the body corporate all movable and immovable property and any interest therein belonging to or hold by any person or persons for the benefit of the trust concerned.

This court had succession to rule on a similar issue in own ruling delivered at Nairobi on the 3rd day of August 2007. In this case of KIDS ALIVE KENYA REGISTERED TRUSTEES VERSUS DR KENDY BORAND AND REV. JOHN BORARD NAIROBI HCC NO 54 OF 2006. Case law on the subject is discussed at page 10 of the said ruling . at line 13 from the bottom, there is quoted the case of JOHN GICHINJI WANGONDU VERSUS RAPHAEL GITAU NJAU AND 5 OTHER NAIROBI CA 241 OF 1997. In this case the court of appeal upheld the superior court decision to struck out the respondent as defendant because they were office bearers of a corporate body which had power to sue and be sued under section 3 (3) of the trustees (perpetual succession) Act cap 164 laws of Kenya.

On the same page there is quoted the case of NKOL RISHA OLE NTOMPO KENERY AND 4 OTHER VERSUS CHAIRMAN LARNGOSUA GROUP RANCH AND 9 OTHER NAIROBI HCCC NUMBER 269 OF 2001 in which Aganyanya J as he then was (now J.A) ruled that under section 7 (3) of the land (group representative) act cap 287 laws of Kenya, the group representatives with the none specified in the certificate in that case Lornngusua are what become a body corporate with perpetual succession. That it is the group representative which is conferred with power to sue and be sued under section 8 (1) of the Act in their corporate capacity and not officials or members of the group and in their official or individual names.

Applying there decision especially the CA one it is endertly clear that a body corporate ha to be sued in its own name and not in the name of officials in their capacity as officials or members of the group. When the provision of section 3 (3) of cap 164 laws of Kenya and the above case laws is considered along side the decision in the case law cited by the applicant they confirm that the legal position which is now trite in that in a situation where there is a body corporate in existence, it has to be sued in its corporate names and not the name of officials in three officials capacity. It therefore follows that the said decision of sister/brother courts having restated the correct position in law. There is no justification for this court to depart from that stand.

On the effect of an invalid pleadings on a subsequent amendments of the same pleading this court too had occasion to revisit the issue also in own ruling delivered by this court in own ruling delivered at Nairobi on the 25th April 2008. At page 11 of the ruling there is a quoted with approval the case of Delhpis Bank limited versus Bechal and others (2003) 2 EA where the plaint was struck out by Sarah Andeyo J. as she then was (now J.) because it had been filed by an advocate without of practising certificate where as at page 12 there is the decision in the case of MUTUKU AND 3 OTHERS VERSUS UNITED INSURANCE COMPANY LIMITED (2003) 1 IKR 250. among other facts the plaintiff sought to struck out the defece on the basis that it was unsigned and there not adefence at all and the amended defence thereof was illegal as it purported to amend that which did not exist in law.

Ringera J. as he then was (held inter alia that the further amended defence was a nullity as it purported to amend the amended defence which was a nullity . these two discuss also decision of current court reinforces the earlier decision that an original pleading which is and judged invalid cannot be cured by an amendments as there would be nothing to amend. It therefore follows that once the original plaint were invalid judge invalid that in relidity to ints the amendments plaint making it invalid. Being so invalidated no amount of further amendments can breathe life into it.

In conclusion and for the reasons given in the assessment the court proceeds to make the following orders;-

(1)The defendant/applicant application dated 1st November 2007 and filed on 2nd November 2007 has been faulted due to misdescription of the parties. It does not indicate who is applying and who is responding to the application. The respondent grounds of opposition too have also been faulted for the same reasons of misrepresentation of the parties. both processes filled parties as they are titled in their original pleadings. The parties should were added the title applicant after the title defendant and respondent after the title plaintiff.

(2)The faulting of the application giving rise to this filing and the grounds of opposition does not in itself preside the court from going a head to make provisionment on the validity or otherwise on the pleadings on record since the issue has been relied and the court now has judicial notice of the same. The court is at liberty to move in its own motion under section 3A of the CPA and under rule 10 (2) CPR to take appropriate steps to be taken firstly for order of justice to be met to both parties and to prevent a buse of the court process. (see this court own ruling delivered on the 25th day of April 2008 in the case of KENYA UNION OF POST PRIMARY TEACHERS VERSUS PETER WANYANYI AND TWO OTHERS NAIROBI HCC NUMBER 1253 OF 2002)

(3)The court has duly in varied its inherent jurisdiction enshrused in section 3A of the CPA and proceeds to make findings on the pleading sought to be followed as hereunder.

(4)The original plaint dated 13th December 2001 and filed on 18th December 2001 be and is hereby found to be a nullity could abinitio because of;-

(i).Since the plaintiff purported to sue a non entity the plaintiff is in consulted as the suit is a nullity.

(ii).The authority to depone the verifying affidavit is not annexed to the verifying affidavit or filed generally in the file. The plaint therefore attends the provision of order VII rule 1 92) CPR which requires that the plaint be accompanied by verifying affidavit.

(iii).The plaintiff being a body corporate there was need to annex to the verifying affidavit resolution of either the Board of Director or the shareholders authorizing the filing of the suit.

(iv).By reasons of matter stated in number I,ii and iii above although existence of a defective verifying affidavit or not totally fatal to the plaint and the same with the discretion of the court can be cared under order VII rule 1 (3) CPR by discretion of the court that reprieve as only available to a plaint which is sound and not in valid one line in the circumstances of this case.

5. The amended plaint amended on 15th April 2002 is found to invalid because:-

(i).It purports to amend the original plaint which has been and judged by this court as a nullity the same was non existent and being non existent it was incapable of being amended for this reason it too is to invited with in nullity and it cannot stand in its own.

(ii). What is stated in number 5(i) above not withstanding, the amended plaint is still invalid in that firstly it still has not given the proper description of the defendant when it should have sued herein secondly it has misdescriped the entity to be sued in that it has not been described as a body corporate to sue and be sued through its trustees. 3rdly its official have been misdescribed as one has been described as the chairman and not a trustee. While the other described as the secretary is incapable of being sued as such on he is not one of the trustee of the body corporate

(5)Issues was raised by the plaintiff concerning the length of time taken to raise the objection to the plaintiff pleading. Indeed the court agrees that this should have been raised properly but that not withstanding being a legal point of law. The court ha judicial notice that it is now trite law that objections on points of law can be raised at any stage of the proceedings. The defence was therefore entitled to raise objection at the point in time that they raised it and this court was therefore entitled, to respond to it in the manner it responded, through in vocation of its inherent jurisdiction which jurisdiction is available to the court either through invitation by a litigant or through its own motion.

(6)The plaintiff/applicant is not left without a reasonably. This court adapt the stand taken by Waweru J in the case of BETH WANJIRU KAMAU THE LEGAL REPRESENTATIVE OF DAVID KAMAU NJOROGE (DECEASED) VERSUS SAVING AND LOAN (K) LTD(supra) by starting the process all over again. Indeed the plaintiff might be generally apprehensive that it must be caught by the period of cavitations. However there is an overrule through which that can be catered for, namely to seek leave to file suit out of time before filing one.

(7)The amended plaint amended on 15/4/2002 been and is therefore struck out for the reasons given.

(8)The defendant applicant will not have cost for the struck out application. But will have costs for the struck out suit.

DATED, READ AND DELIVERED AT NAIROBI THIS 7TH DAY OF November, 2008.

R.N. NAMBUYE

JUDGE