[2010] KEHC 1913 (KLR)
The court found that the applicant, Patrick Barasa, did not have written authority from the members of Tower-Mnara Self-Help Group to institute a representative suit on their behalf. Order 1 Rule 8 of the Civil Procedure Rules mandates that such authority must be expressly given in writing. In the absence of this...
Source-derived case information.
- Citation
- [2010] KEHC 1913 (KLR)
- Parties
- Applicant: Patrick Barasa; Respondent: Job Makokha Wanjala
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 40 of 2009
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to File Representative Suit
- Outcome
- application struck out with leave to file a fresh competent application
- Legal Topics
- Representative Suits, Leave to File, Self Help Groups, Authority to Sue, Striking Out Applications
- 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
Patrick Barasa
Applicant
Job Makokha Wanjala
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to File Representative Suit
Legal Issues
- 1 Whether the applicant has the requisite authority in writing from group members to institute a representative suit on their behalf.
- 2 Whether leave should be granted to file a representative suit under Order 1 Rule 8 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant, Patrick Barasa, did not have written authority from the members of Tower-Mnara Self-Help Group to institute a representative suit on their behalf. Order 1 Rule 8 of the Civil Procedure Rules mandates that such authority must be expressly given in writing. In the absence of this authority, the application was deemed incompetent and bad in law. Consequently, the court struck out the application but granted the applicant leave to file a fresh, competent application should the proper authority be obtained.
Court Disposition
application struck out with leave to file a fresh competent application
Orders
- The application is struck out for want of written authority from group members.
- Leave is granted to the applicant to file a fresh competent application.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE
Miscellaneous Application 40 of 2009
PATRICK BARASA ::::::::::::::::::::::::::::::: APPPLICANT.
VERSUS
JOB MAKOKHA WANJALA :::::::::::::::::::: RESPONDENT.
R U L I N G.
By a Notice of Motion pursuant the order 1 Rule 8 of the Civil Procedure Rules, the applicant seeks orders:-
1. THAT, the applicant be granted leave to file a representative suit on behalf of himself and TOWER – MNARA SELF-HELP GROUP.
2. Costs be provided for.
The application is based on the grounds.
(a)THAT,the applicant is the overseer of the group.
(b)THAT, the applicant needs to file suit to protect the property of the group.
The application is supported by the annexed affidavit of Patrick Barasa sworn on the 15th day of June, 2009.
It was contended on behalf of the applicant that Tower-Mnara Self Help Group is a duly registered Self-Help Group with over 200 makers.A certificate of registration is exhibited as “PB1”.
The said group intends to file a suit against the respondent who has refused to vacate plot No. 1555, Chebarus farm purchased from John Aliang’o vide exhibit “PB2”.
Order 1 Rule 8 of the Civil Procedure Code provides:-
“ 8 (1) Where there are numerous persons having the same interest in one suit, one or more of such persons may sue or be sued, or may be authorized by the court to defend in such suit, on behalf of or for the benefit of al persons so interested.
(2)The court shall in such case direct the plaintiff to give notice of the institution of the suit to all such person either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.
(3)Any person on whose behalf or for whose benefit a suit is instituted or defendant under subrule (1) may apply to the court to be made a party to such suit. ”
I have scanned through the affidavit evidence by way of affidavit in support and came to the conclusion that since the member of the group has not given authority in writing to Patrick Barasa, the applicant, to institute the suit on their behalf the application is bad in law.Accordingly, I strike out the application with leave to the applicant to file a fresh competent application.
Dated and delivered at Kitale this 23rd day of February, 2010.
N.R.O. OMBIJA.
JUDGE.