[2008] KEHC 2455 (KLR)
The court found that the defendants were acting as officials of Kenya Motor Sports Club, a registered society, and not in their personal capacities. The plaintiff's claim related to actions taken by the defendants as such officials, and the premises in question were owned by the society. The court held that the...
Source-derived case information.
- Citation
- [2008] KEHC 2455 (KLR)
- Parties
- Plaintiff: Phineas Kimathi; Defendant: James Muiruri Kahumbura; Defendant: John Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 76 of 2004
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- suit struck out as incompetent with costs to the defendants
- Judges
- DW Mbuteti
- Legal Topics
- Capacity to Sue, Joinder of Parties, Societies Act, Striking Out Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Phineas Kimathi
Plaintiff
James Muiruri Kahumbura
Defendant
John Kamau
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the defendants can be sued in their individual and personal capacities for actions taken as officials of a registered society.
- 2 Whether the suit is incompetent for non-joinder of other officials and the society itself.
Ratio Decidendi
The court found that the defendants were acting as officials of Kenya Motor Sports Club, a registered society, and not in their personal capacities. The plaintiff's claim related to actions taken by the defendants as such officials, and the premises in question were owned by the society. The court held that the defendants ought to have been sued as officials of the society for and on behalf of the society, not in their individual capacities. The failure to join the society and other relevant officials rendered the suit incompetent. Consequently, the suit was struck out with costs to the defendants.
Court Disposition
suit struck out as incompetent with costs to the defendants
Orders
- The suit is struck out as incompetent.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 76 of 2004
PHINEAS KIMATHI ………………. ……………………..PLAINTIFF
VERSUS
1. JAMES MUIRURI KAHUMBURA
2. JOHN KAMAU…………………… ……….………….DEFENDANTS
R U L I N G
The Defendants herein have, by notice dated 28th May 2007, raised a preliminary objection to the Plaintiff’s suit upon the following grounds which I have re-phrased as necessary –
1. That the Defendants were at all material times and still are the chairman and treasurer respectively of KENYA MOTOR SPORTS CLUB (which is a society registered under the Societies Act, Cap 108) acting in their capacities as such officials. They thus cannot be sued in their individual and personal capacities; as such the suit is incompetent.
2. That the suit is also incompetent for non-joinder of other officials of KENYA MOTOR SPORTS CLUB and the society itself.
I have considered the submissions of the Defendants' learned counsel. There was no appearance for the Plaintiff despite service upon his advocates of necessary hearing notice. I have also perused the pleadings herein, particularly the plaint. The Plaintiff’s claim relates to the actions of the Defendants as officials of KENYA MOTOR SPORTS CLUB, apparently a society without the capacity to sue or be sued in its own name. This is notwithstanding the fact that the Plaintiff in the plaint challenges the Defendants’ capacities to be officials of the society without seeking any declaration in that regard.
Further, the premises eviction from which the Plaintiff is resisting are owned by the society.
In these circumstances the Defendants ought to have been sued, not in their personal capacities, but as officials of the society, KENYA MOTOR SPORTS CLUB, for and on behalf of that society. The suit is therefore incompetent. It is hereby struck out with costs to the Defendants. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS ……………………DAY OF MAY 2008.
H.P.G. WAWERU
JUDGE
DELIVERED THIS 30TH DAY OF MAY 2008