[2021] KEELC 820 (KLR)
The court found that while the preliminary objection correctly stated the law regarding the incapacity of unincorporated bodies to sue in their own names, it would be excessively harsh to strike out the suit when it could be salvaged by allowing the joinder of proper parties. The court emphasized the constitutional...
Source-derived case information.
- Citation
- [2021] KEELC 820 (KLR)
- Parties
- Plaintiff: Poka Ranch Group Community Based Organization; Plaintiff: Poka Group Ranch; Defendant: County Government of Kajiado; Defendant: Hon. David Sankori; Defendant: Gikena Investment Limited; Defendant: Esther Ndaru Mukuria (sued in her personal capacity and on behalf of the Estate of the late Walter Bernard Mukundi Mukuria); Defendant: Samuel Mwangi; Defendant: Bouyancy Holdings Limited; Defendant: Land Registrar (Kajiado); Defendant: The Hon. Attorney General; Plaintiff: Jeremiah Lemako; Plaintiff: Harrison Tago
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 31 of 2020
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection and Joinder Application
- Outcome
- Preliminary objection dismissed; application for joinder of plaintiffs allowed.
- Judges
- JE Gicheru
- Legal Topics
- Capacity to Sue, Joinder of Parties, Striking Out Suits, Fair Hearing, Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Poka Ranch Group Community Based Organization
Plaintiff
Poka Group Ranch
Plaintiff
County Government of Kajiado
Defendant
Hon. David Sankori
Defendant
Gikena Investment Limited
Defendant
Esther Ndaru Mukuria (sued in her personal capacity and on behalf of the Estate of the late Walter Bernard Mukundi Mukuria)
Defendant
Samuel Mwangi
Defendant
Bouyancy Holdings Limited
Defendant
Land Registrar (Kajiado)
Defendant
The Hon. Attorney General
Defendant
Jeremiah Lemako
Plaintiff
Harrison Tago
Plaintiff
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection and Joinder Application
Legal Issues
- 1 Whether the plaintiffs, as unincorporated bodies, have legal capacity to sue in their own names.
- 2 Whether the suit should be struck out for want of legal capacity by the plaintiffs.
- 3 Whether the application for joinder of additional plaintiffs should be allowed to salvage the suit.
Ratio Decidendi
The court found that while the preliminary objection correctly stated the law regarding the incapacity of unincorporated bodies to sue in their own names, it would be excessively harsh to strike out the suit when it could be salvaged by allowing the joinder of proper parties. The court emphasized the constitutional right to a fair hearing under Article 50(1), noting that there exists a substantive dispute over the ownership of the suit land and the lawfulness of its acquisition by some defendants. Striking out the suit at this stage would deny one party the right to be heard. Therefore, the preliminary objection was disallowed, and the application for joinder of Jeremiah Lemako and...
Court Disposition
Preliminary objection dismissed; application for joinder of plaintiffs allowed.
Orders
- The preliminary objection dated 30th June, 2020 is disallowed.
- The application dated 5th July, 2020 is allowed.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT AT KAJIADO
ELC CASE NO. 31 OF 2020
POKA RANCH GROUP COMMUNITY
BASED ORGANIZATION ............................................1ST PLAINTIFF/1ST RESPONDENT
POKA GROUP RANCH...............................................2ND PLAINTIFF/2ND RESPONDENT
-VERSUS-
COUNTY GOVERNMENT OF KAJIADO.................1st DEFENDANT/3rd RESPONDENT
HON. DAVID SANKORI...............................................2nd DEFENDANT/4th RESPONDENT
GIKENA INVESTMENT LIMITED............................3rd DEFENDANT/5th RESPONDENT
ESTHER NDARU MUKURIA
(sued in her personal Capacity and on behalf of the Estate of the late
WALTER BERNARD MUKUNDI MUKURIA (deceased)...4th DEFENDANT/APPLICANT
SAMUEL MWANGI........................................................5th DEFENDANT/6th RESPONDENT
BOUYANCY HOLDINGS LIMITED.........................6th DEFENDANT /7TH RESPONDENT
LAND REGISTRAR (KAJIADO) ................................7th DEFENDANT/8th RESPONDENT
THE HON. ATTORNEY GENERAL...........................8th DEFENDANT/9th RESPONDENT
RULING
This ruling is on the Preliminary Objection dated 30th June, 2020 and filed by the second Defendant on the same date.
It states as follows;
“The Plaintiffs are unincorporated bodies that do not exist as legal entities and as such lack capacity to sue or be sued in their own names. The suit is thus incompetent, frivolous and mala fides for the aforestated reason”
Counsel for the second Defendant filed written submissions incorporating five (5) authorities whose ratio decidendi is that “an incorporated entity has no legal personality with capacity to sue or be sued in its own name,”as was held in Football Kenya Federation –vs- Kenya Premier League Limited and 4 others (2015) eKLR.
In the meantime on 6th July, 2020, Jeremiah Lemako and Harrison Tago filed an application dated 5/7/2020 seeking leave to join the suit as plaintiffs on the grounds that their inclusion in the suit will assist the court in arriving at a just conclusion.
I have considered the Preliminary Objection vis -a- vis the application to join and I find that it would be a draconian move to strike out the suit when it can be salvaged.
Article 50 (i) of the constitution of Kenya provides;
Every person has the right to have any dispute that can be resolved by application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body”
There exists in this case a dispute as to whether the suit land belonged to the Plaintiffs and whether it was acquired by some of the Defendants lawfully or not.
Unless and until both sides are given a fair hearing in the resolution of the said dispute, the right guaranteed under Article 50(1)of the constitution will have been denied to one of the parties.
For the above reasons, I disallow the Preliminary Objection and allow the application dated 5th July, 2020 thereby allowing the two applicants therein to join as plaintiffs.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 15TH DAY OF NOVEMBER, 2021.
M.N. GICHERU
JUDGE