[2018] KEELC 1741 (KLR)
The court found that the defendants, being unincorporated societies registered under the Social Services Department, lacked the legal capacity to be sued in their own names. The Societies Act does not provide for suits by or against such societies, and the legislature did not intend for them to be sued as entities....
Source-derived case information.
- Citation
- [2018] KEELC 1741 (KLR)
- Parties
- Plaintiff: Rashid Riziki Ali; Defendant: Mabirikani Residents Committee; Defendant: Mabirikani Upgrading Residents Committee
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 130 of 2017
- Procedural Posture
- Civil Suit / Judgment
- Outcome
- suit struck out
- Judges
- JO Olola
- Legal Topics
- Capacity to Sue, Unincorporated Associations, Joinder of Parties, Squatters Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rashid Riziki Ali
Plaintiff
Mabirikani Residents Committee
Defendant
Mabirikani Upgrading Residents Committee
Defendant
Procedural Posture
Civil Suit / Judgment
Legal Issues
- 1 Whether the defendants, being unincorporated societies, have the legal capacity to be sued in their own names.
- 2 Whether the suit is properly before the court given the status of the defendants.
Ratio Decidendi
The court found that the defendants, being unincorporated societies registered under the Social Services Department, lacked the legal capacity to be sued in their own names. The Societies Act does not provide for suits by or against such societies, and the legislature did not intend for them to be sued as entities. Only their officials can be sued. As a result, the suit was not properly before the court and was struck out for want of proper parties, though no order as to costs was made.
Court Disposition
suit struck out
Orders
- The suit is struck out for want of proper parties.
- No order as to costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC NO. 130 OF 2017
RASHID RIZIKI ALI..............................................................................PLAINTIFF
VERSUS
MABIRIKANI RESIDENTS COMMITTEE
MABIRIKANI UPGRADING RESIDENTS COMMITTEE........DEFENDANTS
JUDGMENT
1. The suit before me was initially filed on 10th November 2015 before the Kilifi Senior Principal Magistrates Court. It was transferred to this Court following the Plaintiff’s application made vide Malindi ELC Miscellaneous Application No. 12 of 2017 on 25th April 2017.
2. The Plaintiff Rashid Riziki Ali prays for an order to compel the two Defendants herein to release the squatters survey fees from the Bank. The Plaintiff’s Prayer is informed by his contention that at all times material, both the Plaintiff and the Defendants were squatters residing at Mabirikani Village in Kilifi County. The Plaintiff accuses the two Defendants named herein as Mabirikani Resident Committee(1st Defendant) and Mabirikani Upgrading Residents Committee(2nd Defendant) of engaging in Court wrangles for over one year which wrangles led to the freezing of the 1st Defendant’s Kenya Commercial Bank Account following instructions of the District Social Development Officer.
3. The Plaintiff further accuses the two Defendants of failing to co-operate in securing title deeds by the squatters despite the efforts of a Senior Administrative Officer who called upon the two to co-operate.
4. The 1st Defendant through one Wellington Deche Nyale who describes himself as the first procedurally elected Chairman of the Committee did file on 8th September 2017 a document described as the “First Defendant’s Statement.” The 2nd Defendant did not file any document.
5. I have taken time to consider the statements, documents and pleadings filed before me. It is apparent from the same that the 1st and 2nd Defendants are welfare societies or organisations registered under the Social Services Department, Kilifi solely for the purposes of helping the membership in acquiring and owning property.
6. In this regard, I am aware that the Societies Act does not contain provisions with regard to the presentation and prosecution of suits by or against unincorporated societies. That being the case, it would appear that the Legislature did not intend that suits be brought by or against those societies in their own names(see Trustees Kenya Redeemed Church & Another –vs- Samuel M. Obuya & 5 Others (2011)eKLR.
7. In light of the above, it is evident to me that the 1st and 2nd Defendants have no capacity to sue or be sued. They can only be sued in the names of their officials against whom summons can then issue. Whereas the Court may not strike out a pleading on the basis of non joinder or misjoinder of parties, it cannot ignore the fact that the parties who are enjoined in any suit must be legal persons with capacity to sue or to be sued.
8. In the circumstances it is my view that the suit before me is not properly before this Court. The same is struck out but with no order as to costs.
Dated, signed and delivered at Malindi this 28th day of September, 2018.
J.O. OLOLA
JUDGE