[2009] KEHC 311 (KLR)
The court held that the National Constituencies Development Fund Management Committee had been abolished by statute and replaced by a Board, which alone had legal capacity to sue or be sued. Therefore, the second respondent was non-existent and could not be sued. The Constituency Development Committee, not being a...
Source-derived case information.
- Citation
- [2009] KEHC 311 (KLR)
- Parties
- Applicant: Republic; Respondent: Constituency Development Committee, Kilgoris Constituency; Respondent: National Constituencies Development Fund Management Committee; Respondent: Hon. Gideon Konchella, Member of Parliament, Kilgoris Constituency; Applicant: John Kirangas Korinko; Applicant: David Rempu Ole Moisite; Applicant: Leposo Kororom; Applicant: Daniel Leuru Ole Kalasinga; Applicant: Nicholas Bett
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 69 of 2008
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objections
- Outcome
- Application struck out with costs to the first and third respondents.
- Legal Topics
- Judicial Review, Locus Standi, Proper Parties, Striking Out, Public Bodies Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Applicant
Constituency Development Committee, Kilgoris Constituency
Respondent
National Constituencies Development Fund Management Committee
Respondent
Hon. Gideon Konchella, Member of Parliament, Kilgoris Constituency
Respondent
John Kirangas Korinko
Applicant
David Rempu Ole Moisite
Applicant
Leposo Kororom
Applicant
Daniel Leuru Ole Kalasinga
Applicant
Nicholas Bett
Applicant
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objections
Legal Issues
- 1 Whether the National Constituencies Development Fund Management Committee is a proper party to be sued after its abolition by statute.
- 2 Whether the Constituency Development Committee can be sued as an entity or only through its individual members.
- 3 Whether the application can be sustained against the third respondent alone after striking out the first and second respondents.
Ratio Decidendi
The court held that the National Constituencies Development Fund Management Committee had been abolished by statute and replaced by a Board, which alone had legal capacity to sue or be sued. Therefore, the second respondent was non-existent and could not be sued. The Constituency Development Committee, not being a corporate entity, could only be sued through its individual members, not as a general committee. With the first and second respondents improperly before the court, the application could not be sustained against the third respondent alone. The application was therefore bad in law and was struck out with costs to the first and third respondents.
Court Disposition
Application struck out with costs to the first and third respondents.
Orders
- The application is struck out.
- Costs awarded to the first and third respondents.
Full Case Text
Judgment text and source record
48 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Miscellaneous Civil Application 69 of 2008
IN THE MATTER OF: AN APPLICATION BY JOHN KIRANGAS KORINKO, DAVID REMPU OLE MOISITE, LEPOSO KOROROM, DANIEL LEURU OLE KALASINGA& NICHOLAS BETT FOR JUDUCIAL REVIEW (PROHIBITION & MANDAMUS)
AND
IN THE MATTER OF: CONSTITUENCY DEVELOPMENT
FUND ACT,
AND
IN THE MATTER OF: CONSTITUTION OF THE
LOCATIONAL COMMITTEE
AND
IN THE MATTER OF: CONVENTION OF LOCATIONAL MEETINGS
AND
IN THE MATTER OF: KILGORIS CONSTITUENCY
BETWEEN
REPUBLIC …………………………………….. APPLICANT
VERSUS
THE CONSTITUENCY DEVELOPMENT COMMITTEE,
KILGORIS CONSTITUENCY …………………………. 1ST RESPONDENT
NATIONAL CONSTITUENCIES DEVELOPMENT
FUND MANAGEMENT COMMITTEE ………….….... 2ND RESPONDENT
HON. GIDEON KONCHELLA, MEMBER OF PARLIAMENT,
KILGORIS CONSTITUENCY ……………….….……. 3RD RESPONDENT
EX-PARTE:
JOHN KIRANGAS KORINKO
DAVID REMPU OLE MOISITE
LEPOSO KOROROM
DANIEL LEURU OLE KALASINGA
NICHOLAS BETT
RULING
After delivery of this court’s ruling dated 2nd March, 2009, this matter was forwarded to the High Court Central registry, Nairobi. But following variation of Gazette Notice No. 300 of 2007 that required all judicial review matters to be heard at Nairobi, this file was returned to this court.
Mr. Ochwangi for the applicant urged this court to give its ruling in respect of the preliminary issues that had been raised by Mr. Bosire for the respondent on 19th February, 2009. The issues had been highlighted in the earlier ruling aforesaid.
I have considered the submissions made by counsel. The Constituencies Development Fund Amendment Act No. 16 of 2007 abolished the National Constituencies Development Fund Management Committee and replaced it with a Development Fund Board. The Board is a corporate entity and capable of suing and being sued, unlike the abolished committee.
In that regard, the second respondent is non-existent and cannot therefore be sued.
As regards the first respondent, the Constituency development Committee, it is trite law that the members of that committee can only be sued in their specific names, not generally as a Committee.
The third respondent is the patron of Kilgoris Constituency Development Fund Committee. In the absence of the first and second respondents who have wrongly been sued, the ex-parte applicants’ application cannot be sustained against
the third respondent alone.
The application is bad in law and is struck out with costs to the first and third respondents.
DATED, SIGNED AND DELIVERED AT KISII THIS 3RD DAY OF DECEMBER, 2009.
D. MUSINGA
JUDGE.
3/12/2009
Before D. Musinga, J.
Mobisa – cc
Mr. Oguttu for the Applicant
N/A for the Respondent
Court:Ruling delivered in open court.
D. MUSINGA
JUDGE.