[2005] KEHC 3118 (KLR)
The court found that the plaintiff association did not own the plots in dispute and failed to demonstrate that it had locus standi to bring the suit. The plaint did not disclose a reasonable cause of action, as the association was neither the registered owner nor had it established any legal right over the subject...
Source-derived case information.
- Citation
- [2005] KEHC 3118 (KLR)
- Parties
- Plaintiff: Savana Jua Kali Association (Suing through its Chairperson) Anne Khasoa; Defendant: Councillor Amos Ngata; Defendant: John Maina; Defendant: Jordan
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 529 of 2004
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- suit struck out
- Judges
- JL Osiemo
- Legal Topics
- Locus Standi, Striking Out Pleadings, Injunctions, Ownership of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Savana Jua Kali Association (Suing through its Chairperson) Anne Khasoa
Plaintiff
Councillor Amos Ngata
Defendant
John Maina
Defendant
Jordan
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaintiff association has locus standi to institute the suit on behalf of its members.
- 2 Whether the plaint discloses a reasonable cause of action against the defendants.
- 3 Whether the suit is competent in law given the lack of evidence of registration and representative capacity.
Ratio Decidendi
The court found that the plaintiff association did not own the plots in dispute and failed to demonstrate that it had locus standi to bring the suit. The plaint did not disclose a reasonable cause of action, as the association was neither the registered owner nor had it established any legal right over the subject plots. Furthermore, there was no evidence that the association was registered or had the capacity to sue or be sued. The suit was not brought in accordance with the requirements for representative actions, as leave under Order 1 Rule 8 had not been obtained. Consequently, the suit was deemed misconceived, incompetent, and an abuse of the court process, warranting its striking out.
Court Disposition
suit struck out
Orders
- The suit is struck out.
- The plaintiffs will bear the costs of this application as well as the whole suit.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
Civil Case 529 of 2004
SAVANA JUA KALI ASSOCIATION (Suing through its Chairperson)
ANNE KHASOA………………………..........……………………...PLAINTIFF
VERSUS
COUNCILLOR AMOS NGATA……..….........…….………1ST DEFENDANT
JOHN MAINA……………………….….........………..…….2ND DEFENDANT
JORDAN………………………….......….……………..…..3RD DEFENDANT
RULING
The plaintiff filed this suit against the defendants seeking permanent order of injunction barring the defendant from entering the premises comprised in plots Nos. BLOCK 82/4265, 82/7836, 82/785, 82/7814, 82,7812, 82/786040, 82/6194, 82/1764, 82/1765, 82/1768 and 82/7856.
In paragraph 4 of the plaint the plaintiff claims that the members of Savana Jua Kali Association are the allottees and bonafide owners of the named above plots.
The defendant by way of a Chamber Summons dated 26th
October 2004 and filed in court the same day seeks orders that the plaint herein be struck out on the ground that it does not disclose reasonable cause of action. The application is expressed to be brought under Order VI Rule 13(1) of the Civil procedure Rules.
The application is supported by sworn affidavit by councilor Amos Ngata who has deponed that the plaintiff’s association has no locus standi to institute the suit if it does not own any of the plots in dispute. That the suit is a gross abuse of the court process as none of the plots mentioned in the plaint belongs to the plaintiff or even its members. That the suit is bad in law as it does not seek any declaration of the plaintiff’s rights and merely seeks an injunction against the defendants without establishing the basis thereof.
When the application came up for hearing there was no appearance for the respondent, counsel for the applicant applied for leave to proceed as the date was taken by consent and leave was granted. In his submissions he urged the court to strike out the plaintiff’s suit on the ground that the plaint does not disclose reasonable cause of action. The plaintiff does not aver that it owns the plots the subject matter of this suit. It avers that the plots belong to its members and if that is so then the plaintiff has no locus standi to bring this suit. If land is owned by each individual member then those members should sue by themselves.
The plaintiff had annexed letters of the allotment to prove ownership but the allottees named therein are not among the plaintiffs. Counsel further submitted that if the plaintiff Association is registered it ought to bring the suit through its officials and if it is brought by Anne Khasoa in a representative capacity, then she ought to have obtained leave under Order 1 Rule 8 of the Civil Procedure Rules.
There is no evidence that the Association is registered. It is not known whether the Association has power to sue or be sued. The whole suit is clearly misconceived and for that reason is incompetent.
For the above reason this suit is struck out. The plaintiffs will bear the costs of this application as well as the whole suit. It is so
ordered.
Delivered and dated Nairobi this 29th day of June 2005.
J.L.A. OSIEMO
JUDGE