[2014] KEHC 4634 (KLR)
The court found that Sagalla Ranchers Ltd. failed to demonstrate that its Board of Directors had authorized the filing of the suit, as no board resolution or verifying affidavit was filed. This omission was a fundamental defect, rendering the suit incompetent. The issue was raised in the defence and not opposed by...
Source-derived case information.
- Citation
- [2014] KEHC 4634 (KLR)
- Parties
- Plaintiff: Sagalla Ranchers Ltd.; Defendant: Izera Enterprises Ltd.; Defendant: Gitonga Wambugu Kariuki
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 210 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Strike Out Plaint
- Outcome
- application allowed; suit struck out with costs
- Judges
- SN Mukunya
- Legal Topics
- Company Resolution Requirement, Striking Out Pleadings, Corporate Locus Standi
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sagalla Ranchers Ltd.
Plaintiff
Izera Enterprises Ltd.
Defendant
Gitonga Wambugu Kariuki
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the suit filed by the plaintiff is competent without a board resolution authorizing its institution.
- 2 Whether failure to file a board resolution and verifying affidavit warrants striking out the plaint.
Ratio Decidendi
The court found that Sagalla Ranchers Ltd. failed to demonstrate that its Board of Directors had authorized the filing of the suit, as no board resolution or verifying affidavit was filed. This omission was a fundamental defect, rendering the suit incompetent. The issue was raised in the defence and not opposed by the plaintiff, who also failed to respond to the application. The court held that the legal requirement for a company to authorize litigation through a board resolution is mandatory, and non-compliance warrants striking out the plaint. The court therefore allowed the unopposed application and struck out the suit with costs to the defendants.
Court Disposition
application allowed; suit struck out with costs
Orders
- The plaint is struck out with costs to the defendants.
- The application is allowed as prayed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
ELC. CASE NO. 210 OF 2013
SAGALLA RANCHERS LTD. ............................. .........PLAINTIFF/RESPONDENT
- V E R S U S -
IZERA ENTEPRISES LTD ................................. 1ST DEFENDANT/APPLICANT
GITONGA WAMBUGU KARIUKI ...................... 2ND DEFENDANT/APPLICANT
RULING
The applicant filed this application praying that the suit herein be struck out with costs as the same is an abuse of the process of the court.
The basis of the application is that the plaintiff is a limited liability company and that the suit was filed without the resolution of the Board of Directors of the company authorizing Mr. Eliud Mwamunga to swear a replying affidavit to the plaint.
The issue was raised in paragraph 3 of the statement of defence filed in court on 18th October 2013. The applicant filed this application on 16th December, 2013 and served the same on the plaintiffs advocate on 20th January 2014. No replying affidavit or grounds of objection were ever filed or at all.
Mr. Gikandi learned counsel urged the court to strike out the plaint with costs as the filing of a resolution of the Board of Directors to file the suit and to swear a verifying Affidavit is a legal requirement. This issue was raised in the defence filed in court in October 2013. It was argued that the plaintiff will not be prejudiced as they can always file another suit.
Miss. Kariuki Learned Counsel who held brief for the plaintiffs advocates had nothing to say.
This application is unopposed and is allowed as prayed.
Dated and delivered in open court at Mombasa this 3rd day of
June, 2014.
S. MUKUNYA
JUDGE
3. 6.2014
In the presence of:
Mrs.Kariuki advocate holding brief for Mr. Gikandi Advocate for the defendant.
Mr. Kinoti Kibe Advocate for the plaintiff.