https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12390

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E044 OF 2021** **STEPHEN OUMA……..………………………………………….APPELLANT** **VERSUS** **BERNARD ODHIAMBO AUMA………………………1ST RESPONDENT** **DOMINIC ODERO AHONO…………………………..2ND RESPONDENT** **EUNICE ADHIAMBO OCHIENG……………………3RD RESPONDENT** **DANIEL NYAMBOGO OUKO…………………………4TH RESPONDENT** **THE HONOURABLE ATTORNEY GENERAL…..5TH RESPONDENT** *(Being an appeal from the judgement and decree* *of* *Hon.* *S.N. Telewa, Senior Resident Magistrate, delivered* *on 7th April, 2021 in Kisumu CMCC No. 169 of 2017).* **JUDGEMENT** 1. **INTRODUCTION.** 2. This appeal arises from the judgement and decree of **Hon. S.N. Telewa,** Senior Resident Magistrate, delivered on 7th April, 2021 in *Kisumu CMCC No. 169 of 2017.* 3. The suit before the trial court was commenced by the Appellant (the Plaintiff before the trial court) against the Respondents (the Defendants before the trial court) vide a plaint dated 10th April, 2017, in which the Appellant pleaded that he was the Chairman and Secretary of Lau Ngimani Self-Help Group, a community-based organization registered under the Ministry of East African Community, Labour and Social Protection. 4. The Appellant sued the 1st to 4th Respondents as private individuals and the 5th Respondent, the Attorney General, on behalf of the Chief of East Kisumu Location for acts allegedly committed in the course of the Chief’s official duties. 5. The Appellant pleaded that on or about 27th June, 2017, the 1st to 4th Respondents, together with the Chief of East Kisumu Location, unlawfully entered and removed the Self-Help Group’s property comprising two complete tents, sixty-five plastic chairs, sixteen roofing iron sheets and assorted cooking utensils. He further averred that despite repeated visits and demands for the return of the said items, the Respondents had refused and/or neglected to release them. 6. On the basis of those averments, the Appellant sought judgement against the Respondents jointly and severally for an order compelling the unconditional release and restitution of the aforesaid items to the Self-Help Group, a permanent injunction restraining the Respondents from further interfering with the Group’s property and activities, costs of the suit together with interest and such other relief as the trial court deemed fit and just. 7. The 1st to 4th Respondents resisted the Appellant’s suit by filing a joint statement of defence dated 26th July, 2017 in which they denied each and every allegation contained in the plaint. They admitted only the descriptions of the parties as pleaded but denied any liability to the Appellant. 8. The 1st to 4th Respondents specifically denied the Appellant’s allegation that on or about 27th June, 2017 they, together with the Chief of East Kisumu Location, invaded the premises of Lau Ngimani Self-Help Group and carried away the Group’s property. They also denied that the Appellant had made repeated demands for the release of the said items or that he was entitled to their return, and put him to strict proof of those allegations. 9. The 1st to 4th Respondents further pleaded that they were the duly registered and *bona fide* officials of Lau Ngimani Development Group, whereas the Appellant was a former official who had refused to hand over the Group’s property. 10. They averred in their defence that despite being summoned on several occasions by the area Chief to resolve the dispute, the Appellant failed to attend, thereby prompting them to recover the Group’s property, which they alleged he had been unlawfully retaining, and to keep it in safe custody for the benefit of the Group. 11. The 1st to 4th Respondents also raised preliminary objections to the suit, contending that the Appellant lacked the requisite capacity to institute the proceedings as he was no longer an official of the Group. They further pleaded that, to the extent that the suit had been brought in a representative capacity, it was incompetent for want of leave of the court. They additionally denied the trial court’s jurisdiction, maintained that the suit was fundamentally defective and liable to be struck out, and prayed for its dismissal with costs. 12. The 5th Respondent filed a statement of defence dated 18th July, 2017 in which it denied each and every allegation contained in the plaint. It admitted only the description of the parties but otherwise denied any liability to the Appellant. 13. The 5th Respondent pleaded that the averments relating to the alleged invasion and removal of the Group’s property were vague and lacking in material particulars, as the plaint did not specify the location where the alleged invasion occurred, the place from which the items were removed or sufficiently identify Lau Ngimani Self Help-Group. 14. The 5th Respondent further denied that the Appellant had made any visits or demands for the release of the property and averred that the Appellant was a stranger to the alleged Self-Help Group. 15. The 5th Respondent further pleaded that it would abide by any orders of the trial court once the Appellant proved his entitlement to the assets claimed. 16. It admitted the jurisdiction of the trial court. 17. **THE EVIDENCE BEFORE THE TRIAL COURT.** 18. The Appellant testified as PW1 and adopted the contents of his witness statement dated 7th February, 2017 and told the trial court that he was the Chairman of Lau Ngimani Self-Help Group, having been elected in August, 2014 in accordance with the Group’s constitution. 1. He stated that, by virtue of his office, the Group entrusted him with the custody of its assets, namely two tents, sixty-five plastic chairs, sixteen roofing iron sheets and assorted cooking and serving utensils, which were used to generate income for the Group. 2. The Appellant testified that on 27th June, 2016, following a summons by the Chief of East Kisumu Location, he attended the Chief’s office where he found the 1st to 4th Respondents and other persons. He stated that after acknowledging that the Group’s assets were in his custody, the Chief directed him to accompany them to his home. 3. According to the Appellant, the Chief then instructed the 1st to 4th Respondents to remove all the Group’s property from his premises, asserting that he had authority over the assets. He testified that the items were loaded onto a motor vehicle and taken to the Chief’s camp and that, in the process, the door to his store was broken. 4. The Appellant produced photographs depicting the removal of the items as well as his membership card, the Group’s constitution, a document relating to the custody of the assets, the Group’s bank account documents and correspondence from the Social Services Department. 5. PW1 further testified that he reported the incident to the police and subsequently to the Social Services Department. He stated that despite the dispute among the Group’s officials over its leadership and assets, the property had never been returned. He maintained that he instituted the suit in his capacity as Chairman on behalf of the Group and sought the return of the assets for the benefit of the Group. 6. During cross-examination, the Appellant admitted that the suit had been filed on behalf of the Self-Help Group and conceded that he did not have any documentary proof that he remained the Chairman or any resolution or minutes authorizing him to institute the suit on the Group’s behalf. 7. He nevertheless maintained that the property belonged to the Group, denied refusing to surrender the items or forming another group and insisted that the assets were intended to benefit the Group rather than himself. 8. Upon re-examination, he reiterated that the suit had been brought for the benefit of the Group and that he sought the return of the property to enable the Group to continue using it. 9. The 1st to 4th Respondents called **Dominic Odero Ahono** who testified as DW1 and adopted the contents of his witness statement dated 11th February, 2019. 10. The witness told the trial court that he was the Chairman of Lau Ngimani Self-Help Group and that the property in dispute belonged to the Group and was hired out to generate income for its members. He testified that although the Appellant had previously served as Chairman, his tenure came to an end following elections held on 10th January, 2016, at which one **Benard Odhiambo Auma** was elected Chairman. 11. According to DW1, the Appellant thereafter ceased to be an official of the Group, handed over the registration certificate but declined to surrender the Group’s records and assets. 12. DW1 testified that after the elections the Appellant disputed the outcome, split from the Group and formed another group together with a few members who supported him. He stated that the new officials and other members unsuccessfully attempted to persuade the Appellant to hand over the Group’s property and documents, prompting them to seek the intervention of the area Chief. 13. According the witness, several meetings were convened before the Chief and other elders, during which the Appellant either failed to attend or declined to relinquish the property, despite initially indicating that he would do so. 14. He further stated that the dispute was subsequently referred to the Social Services Department for amicable resolution, but the Appellant responded that the matter had already been taken to court. 15. DW1 further testified that on 27th June, 2016 the Chief directed that the Group’s property be collected from the Appellant’s custody and kept at the Chief’s camp pending resolution of the leadership dispute. He stated that the Appellant accompanied them to his home, opened the store where the property was kept and handed over two tents, sixty-five plastic chairs and sixteen roofing iron sheets, while cooking utensils were collected from the home of one **Lucy Orwa** after the Appellant disclosed that they had been stored there. 16. The witness testified that the property remained at the Chief’s camp and that the Appellant had never surrendered the Group’s official records. 17. In support of his testimony, DW1 produced the Group’s registration certificate, correspondence from the Ministry of Social and Labour Services, the Chief’s summons and a copy of the Group’s constitution. 18. During cross-examination, DW1 acknowledged that he had not produced the minutes of the meetings allegedly held before the Chief or the minutes of the elections through which the Appellant was replaced as Chairman. He also conceded that the constitution relied upon by the Respondents was unsigned, whereas the Appellant’s copy bore signatures, and accepted that he personally participated in collecting the Group’s property from the Appellant’s premises. 19. He nevertheless maintained that the Appellant was no longer the Chairman of the Group, that the property belonged to the Group rather than the Appellant, and that the suit had been instituted without the authority of the Group. 20. Upon re-examination, he reiterated that the Appellant had ceased to be an official of the Group after the 2016 elections and had handed over the Group’s registration certificate but not its other property and records. 21. The 5th Respondent did not call any witness. 22. **THE TRIAL COURT’S FINDINGS.** 23. In its judgement rendered on 7th April, 2021, the trial court identified three issues for determination, namely: whether the Respondents had carried away the Appellant’s goods, whether the goods ought to be returned to the Appellant, and whether the Appellant had the requisite *locus standi* to institute the suit. 24. The trial court reviewed the evidence adduced by the parties. It noted the Appellant’s testimony that he had been elected Chairman of Lau Ngimani Self-Help Group in August, 2014, that under the Group’s constitution a chairman could be re-elected after serving an initial term, and that the Group’s assets, comprising sixty-five plastic chairs, sixteen roofing iron sheets, tents and other items, had been entrusted to him for safe custody before being taken away by the Respondents in the company of the area Chief. 25. The court also considered his evidence regarding the Group’s bank account and his request that the property be returned. 26. The trial court further considered the evidence of DW1, who testified that he was the duly elected Chairman of the Group following elections held on 10th January, 2016, that the Appellant’s tenure had come to an end, and that although the Appellant had surrendered the Group’s registration certificate, he had failed to hand over the Group’s assets. 27. The court also noted DW1’s evidence that by 2017, the Appellant was no longer an official of the Group. 28. Upon evaluating the pleadings and evidence, the trial court found that the Appellant had instituted the suit not only in his own capacity but also on behalf of the members of Lau Ngimani Self-Help Group. It therefore held that the suit was, in substance, a representative action, requiring compliance with *Order 1 Rules 8* and *13* of the *Civil Procedure Rules* by obtaining the authority or written consent of the persons on whose behalf the suit had been brought. 29. In reaching that conclusion, the trial court relied on ***Kipsiwo Community Self Help Group v Attorney General & 6 Others [2013] eKLR,*** in which it was held that members of a self-help group may only sue through representatives who demonstrate that they have the requisite authority from the other members. 30. The trial court found that the Appellant had not produced any such authority or consent and consequently lacked the requisite capacity to maintain the suit. 31. Having found that the suit was incompetent for want of *locus standi* and the necessary authority to institute a representative action, the trial court dismissed the suit with costs to the Respondents without making any determination on the substantive merits of the Appellant’s claim. 32. **GROUNDS OF APPEAL.** 33. Being aggrieved and dissatisfied with the judgement and decree of the trial court, the Appellant preferred the instant appeal vide the memorandum of appeal dated, raising the following grounds: 1. **The learned Magistrate erred in law and in fact in dismissing the Appellant’s suit against the weight of evidence.** 2. **The learned Magistrate erred in law by applying *Order 1 Rule 8* as read together with *Rule 13* of the *Civil Procedure Rules* to the Appellant yet the same had not been pleaded.** 3. **The learned Magistrate erred in law in dismissing the case against the spirit of *Article 159* of the *Constitution* and the Oxygen Principles.** 4. **The learned Magistrate erred in law and in fact in failing to consider the Appellant’s submissions and judicial authorities thus leading to resultant miscarriage of justice to the Appellant.** 34. The Appellant proposes that the appeal be allowed, the order of dismissal of the suit before the trial court be set aside and be substituted with judgement entered in favour of the Appellant as was prayed for in the plaint. The Appellant also seeks costs of the suit before the trial court and of the present appeal. 35. **DUTY OF THIS COURT.** 36. As this is a first appeal, I am obligated, pursuant to *Section 78* of the *Civil Procedure Act* and as articulated in **Selle v Associated Motor Boat Co. Ltd *[1969] E.A. 123,*** to re-assess, re-analyze and re-evaluate the evidence presented before the trial court and to arrive at my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify. 37. In ***Selle***, **Sir Clement De Lestang**observed that: ***“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.*** ***However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”*** 1. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of ***Peters v Sunday Post Limited [1958] EA 424*** in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles: ***“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;*** ***ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and*** ***iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”*** 1. **THE APPELLANT’S SUBMISSIONS.** 2. In support of the appeal, the Appellant submits that the trial court erred both in law and in fact by dismissing his suit despite the evidence on record, by invoking *Order 1 Rules 8* and *13* of the *Civil Procedure Rules* on representative suits when the issue had not been pleaded by the parties, by failing to give effect to *Article 159* of the *Constitution* and the overriding objective, and by failing to consider his submissions and the authorities cited, thereby occasioning a miscarriage of justice. 3. The Appellant contends that the trial court wrongly concluded that the suit was incompetent for want of authority from the members of Lau Ngimani Self-Help Group. He submits that he instituted the suit in his capacity as the Chairman of the Group and, by virtue of that office and the Group’s constitution, was duly authorised to represent the Group. 4. He argues that the evidence adduced at the trial, including the Group’s constitution and the minutes produced in evidence, established that the Group had entrusted him with custody of its assets and that he had the requisite mandate to institute the proceedings. 5. The Appellant further submits that the Respondents unlawfully entered his premises and removed the Group’s property without lawful authority. He maintains that the property had been placed in his custody pursuant to a resolution of the Group and that he had no intention of appropriating it for his personal benefit but merely sought its return in his capacity as Chairman and custodian of the Group’s assets. 6. He therefore urges this Court to find that he proved his case on a balance of probabilities, allow the appeal, set aside the judgment of the trial court and substitute it with a judgment allowing the suit together with costs. 7. **THE 1ST TO 4TH RESPONDENTS’ SUBMISSIONS.** 8. On their part, the 1st to 4th Respondents submit that the learned trial Magistrate properly evaluated the pleadings, documentary evidence, oral testimony and the parties’ submissions before arriving at her decision. 1. They argue that the Appellant has not demonstrated that the trial court disregarded the evidence, failed to consider his submissions or the authorities cited, or otherwise misdirected itself in reaching its conclusions. They further submit that if the Appellant believed that the trial court had overlooked his submissions, the appropriate remedy would have been an application for review rather than an appeal. 2. The 1st to 4th Respondents further submit that the trial court correctly found that the suit was, in substance, a representative action. They argue that the Appellant expressly instituted the proceedings as Chairman of Lau Ngimani Self-Help Group and admitted during cross-examination that he had filed the suit on behalf of the Group. 3. According to the Respondents, the issue of the Appellant’s capacity and the absence of authority from the members was specifically pleaded in their statement of defence, thereby putting the Appellant on notice of the defect. They contend that despite that pleading, the Appellant neither amended his pleadings nor obtained the written authority or consent required under *Order 1 Rules 8* and *13* of the *Civil Procedure Rules.* 4. The 1st to 4th Respondents also submit that *Article 159* of the *Constitution* and the overriding objective could not cure the Appellant’s failure to comply with mandatory procedural requirements. They argue that the Appellant has not identified any act or omission on the part of the learned trial Magistrate that violated *Article 159* or the oxygen principle and that it was incumbent upon him to take the necessary procedural steps if he wished to rely on those provisions. 5. The 1st to 4th Respondents further maintain that the evidence demonstrated that the Appellant had ceased to be the Chairman of the Group following elections held in January, 2016 and that the duly elected officials were reflected in the records of the Ministry of Labour, Social Security and Services. 6. They submit that, at the time the suit was instituted, the Appellant lacked the capacity to represent the Group and had no lawful claim to the Group’s property. They further contend that under the Group’s constitution, custody of the Group’s property fell within the mandate of the Treasurer rather than the Chairman. 7. The 1st to 4th Respondents therefore submit that the trial court correctly relied on ***Kipsiwo Community Self Help Group v Attorney General & 6 Others [2013] eKLR*** in holding that members of a self-help group can only sue through authorised representatives. They urge this Court to find that the suit was incompetent for want of *locus standi* and the requisite authority, uphold the judgement of the trial court, and dismiss the appeal with costs. 8. **THE 5TH RESPONDENT’S SUBMISSIONS.** 9. The 5th Respondent submits that the learned trial Magistrate properly directed herself both on the facts and the law in dismissing the Appellant’s suit. It contends that the suit was correctly found to be a representative action instituted on behalf of Lau Ngimani Self-Help Group without compliance with *Order 1 Rules 8* and *13* of the *Civil Procedure Rules* and was therefore incompetent. 10. The 5th Respondent argues that the registration of Lau Ngimani Self-Help Group and the existence of its constitution did not confer upon it juristic personality or the capacity to sue or be sued in its own name. 11. Relying on ***Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank [2001] eKLR*** and ***Kipsiwo Community Self Help Group v Attorney General & 6 Others [2013] eKLR,*** it submits that an unincorporated self-help group can only litigate through its members or duly authorised representatives in compliance with the *Civil Procedure Rules.* 12. It contends that the Appellant neither sought leave to institute a representative suit nor obtained and filed the written authority of the members, rendering the suit incompetent from its inception. 13. The 5th Respondent further submits that the Appellant’s failure to comply with the mandatory requirements governing representative suits was a jurisdictional defect that could not be cured by *Article 159(2)(d)* of the *Constitution* or the overriding objective. 14. In that regard, it relies on ***Owners of the Motor Vessel "Lillian S" v Caltex Oil (Kenya) Ltd [1989] KLR 1*** and ***Law Society of Kenya v Commissioner of Lands & 2 Others [2001] eKLR*** for the proposition that questions of jurisdiction and *locus standi* are fundamental and cannot be overcome by procedural provisions intended to promote substantive justice. 15. The 5th Respondent also submits that the Appellant failed to establish any cause of action against the Chief, on whose behalf the Attorney General was sued. It argues that the evidence merely disclosed an internal dispute regarding the leadership of the Self-Help Group and custody of its property, without proving that the Chief committed trespass, unlawfully converted the Group’s property, acted outside his statutory mandate or otherwise abused his office. 16. It therefore contends that the burden of proof under *Sections 107* to *109* of the *Evidence Act* was not discharged and that no basis was established for imposing vicarious liability upon the Attorney General. 17. Finally, the 5th Respondent submits that, applying the principles governing a first appeal as set out in ***Selle & Another v Associated Motor Boat Co. Ltd & Others*** (supra), there is no basis for interfering with the judgement of the trial court, which correctly identified the issue of *locus standi* as determinative and applied the applicable legal principles. 18. **ISSUES FOR DETERMINATION.** 19. Having considered the grounds of appeal, the record of the trial court and the parties’ submissions, the following issues avail for determination: 1. Whether the trial court erred in holding that the Appellant lacked the requisite *locus standi* and authority to institute the suit. 2. Whether the trial court erred in finding that the suit was a representative suit caught by *Order 1 Rules 8* and *13* of the *Civil Procedure Rules.* 3. Whether the trial court erred in invoking *Order 1 Rules 8* and *13* of the *Civil Procedure Rules* notwithstanding the Appellant’s contention that the issue had not been pleaded and that *Article 159* of the *Constitution* cured any procedural defect. 4. Whether there exists any basis for this Court to interfere with the judgement of the trial court. 20. **ANALYSIS AND FINDINGS.** 21. The first issue is whether the Appellant had the requisite legal capacity or *locus standi* to institute the suit before the trial court*. Locus standi* concerns the legal capacity of a litigant to institute proceedings before a court of law. It is not a mere procedural technicality but a threshold issue that goes to the competence of proceedings. A court is therefore obliged to satisfy itself that a party approaching it possesses the requisite legal capacity before embarking upon the merits of the dispute. 22. The pleadings filed before the trial court demonstrate that the Appellant did not sue in his personal capacity. Paragraph 1 of the plaint expressly described him as the Chairman and Secretary of Lau Ngimani Self-Help Group. The prayers sought were likewise not directed towards vindicating any personal proprietary rights but sought the return of property admittedly belonging to Lau Ngimani Self-Help Group and an injunction restraining interference with the Group’s property and activities. 23. More importantly, the Appellant’s own evidence removed any doubt as to the capacity in which he approached the court. During examination-in-chief he expressly testified that he had brought the case “as chairman on behalf of the group.” During cross-examination he again admitted that “the case was brought on behalf of the self-help group.” He further conceded that he had no authority from the minutes of the Group authorising him to file the suit and possessed no documentary proof showing that he had been authorised by the Group to institute the proceedings. 24. Those admissions were significant. They constituted direct evidence from the Appellant himself that he was litigating not to enforce an individual right but to enforce rights allegedly belonging to an unincorporated self-help group. The trial court cannot therefore be faulted for treating the matter according to the Appellant's own pleaded case and sworn testimony. 25. The Appellant argued that his position as Chairman automatically clothed him with authority to sue. That argument is unsupported by the evidence. First, the very question whether he remained Chairman was vigorously contested. Secondly, even assuming that he remained Chairman, no provision of the constitution produced before the trial court was shown to confer upon the Chairman unilateral authority to commence litigation on behalf of the entire membership without a resolution of the Group. 26. Indeed, the Appellant candidly admitted during cross-examination that he had no minutes authorising the institution of the proceedings. Having made that admission, it was not open to him to argue on appeal that authority should simply be presumed. 27. The evidence equally disclosed a serious dispute regarding the leadership of the Group. Whereas the Appellant maintained that he remained Chairman, DW1 testified that elections had been conducted in January, 2016 and new officials elected. Documentary evidence from the Social Services Department was produced supporting that position. Although DW1 admitted that election minutes had not been produced, the existence of the dispute itself underscored the necessity of proving actual authority before one faction could litigate in the name of the entire Group. 28. I therefore agree with the trial court that the Appellant failed to demonstrate that he possessed the requisite authority from the members of Lau Ngimani Self Help Group to institute proceedings on their behalf. 29. The second issue for determination is whether the trial court erred in finding that the suit was a representative suit caught by *Order 1 Rules 8* and *13* of the *Civil Procedure Rules.* 30. The Appellant’s principal complaint is that the trial court wrongly characterized the proceedings as a representative suit. I respectfully disagree. 31. Courts determine the true character of proceedings from the pleadings, the reliefs sought and the evidence adduced rather than the labels employed by parties. In the present matter, every material aspect of the case demonstrated that the suit was representative in nature. 32. The property claimed belonged to the Self-Help Group. The injunction sought was intended to protect the Group’s activities. The restitution sought was for the benefit of the Group. At no point did the Appellant claim any proprietary interest in the tents, chairs, roofing sheets or utensils distinct from that of the Group. 33. Furthermore, the Appellant repeatedly testified that the property belonged to the Group and that he merely wanted it returned for the benefit of the members. Those admissions are wholly inconsistent with a personal action but entirely consistent with representative litigation. 34. The law governing representative proceedings is contained in *Order 1 Rule 8* of the *Civil Procedure Rules.* Where numerous persons possess the same interest in proceedings, one or more may sue on behalf of the others subject to compliance with the safeguards prescribed by the *Rules.* *Order 1 Rule 13* similarly requires written authority where one person appears or acts for another. 35. In ***Kipsiwo Community Self Help Group v Attorney General & 6 Others*** (supra), the High Court recognized that members of a self-help group may litigate through representatives, but such representatives must demonstrate authority from those they purport to represent. That principle is directly applicable to the present dispute. 36. Equally instructive is ***Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank*** (supra), where the Court of Appeal affirmed that an unincorporated association lacks separate legal personality and can only litigate through its members in accordance with the applicable procedural law. 37. Since Lau Ngimani Self-Help Group was admittedly an unincorporated self-help group, compliance with those principles was not optional. The trial court therefore correctly characterized the proceedings as representative litigation. 38. The third issue for me to address is whether the trial court erred in invoking *Order 1 Rules 8* and *13* of the *Civil Procedure Rules,* notwithstanding the Appellant’s contention that the issue had not been pleaded and that *Article 159* of the *Constitution* cured any procedural defect. 39. The Appellant’s argument that Order *1 Rules 8* and *13* were never pleaded is not borne out by the record. 40. Paragraph 8 of the joint statement of defence filed by the 1st to 4t Respondents expressly pleaded that the Appellant lacked capacity to institute the proceedings and further pleaded that, to the extent the suit had been brought in a representative capacity without leave, it was defective and liable to be struck out. The issue was therefore squarely placed before the trial court from the outset. 41. Throughout the proceedings the Respondents consistently challenged the Appellant’s capacity. Indeed, the Appellant himself was extensively cross-examined on the absence of authority from the Group. Consequently, it cannot be said that the trial court determined an issue that had neither been pleaded nor canvassed. 42. Nor can *Article 159(2)(d)* of the *Constitution* rescue the Appellant. That constitutional provision was never intended to dispense with mandatory substantive requirements governing legal capacity. It was enacted to prevent undue reliance upon procedural technicalities, not to validate proceedings instituted by persons who have failed to establish authority to litigate on behalf of others. 43. *Article 159* is not a panacea for every procedural omission and cannot be invoked to cure substantive defects affecting the competence of proceedings. The present defect was not merely one of form. It concerned the authority of one faction to invoke the judicial process in the name of an entire unincorporated association whose leadership was itself disputed. 44. The Appellant equally submitted that the Oxygen Principles ought to have saved his claim. Those principles facilitate the just, expeditious and proportionate determination of disputes. They do not relieve litigants from complying with foundational legal requirements regarding legal capacity and authority. 45. I therefore find no error in the trial court’s reliance upon *Order 1 Rules 8* and *13* of the *Civil Procedure Rules* 46. The third issue for determination is whether there exists any basis for this Court to interfere with the judgement of the trial court. 47. As a first appellate court, this Court may interfere with findings of the trial court only where they are unsupported by the evidence, based upon a misapprehension of the evidence or founded upon an erroneous application of legal principles. 48. Having independently reconsidered the entire record, I am satisfied that the learned trial Magistrate correctly identified the determinative issue. Once she concluded that the Appellant lacked authority to maintain proceedings on behalf of the Self-Help Group, the suit became incompetent. That finding was sufficient to dispose of the matter. 49. Although extensive evidence was led regarding the disputed elections, the removal of the Group’s property and the conduct of the Chief, those issues presupposed a competent suit properly before the court. In the absence of the requisite authority to sue on behalf of the Group, the trial court properly declined to pronounce itself upon the substantive ownership dispute. 50. I am equally unable to conclude that the learned trial Magistrate failed to consider the Appellant’s submissions or the authorities cited. The judgement expressly addressed the issue ultimately found to be determinative and cited the authority upon which the decision rested. A court is not obliged to discuss every submission or every authority where one dispositive issue resolves the dispute. 51. Finally, even on my own independent evaluation of the evidence, I am left with considerable uncertainty as to who lawfully constituted the officials of the Self-Help Group at the material time. That uncertainty further demonstrates why proof of authority to litigate was indispensable before one faction could invoke the court’s jurisdiction on behalf of the entire membership. 52. **DISPOSOTION AND ORDERS.** 53. In the premises, I find no error of fact or law warranting interference with the judgement of the trial court. Consequently, the appeal lacks merit and is hereby dismissed. The judgement and decree of the Senior Resident Magistrate delivered on 7th April, 2021 in *Kisumu CMCC No. 169 of 2017* are hereby upheld. 54. The Appellant shall bear the costs of this appeal which I assess at Ksh.30,000/- as well as the costs awarded by the trial court. 55. This file is hereby closed. DELIVERED (virtually), DATED & SIGNED this 23rd day of July, 2026. **JOE M. OMIDO** **JUDGE** FOR APPELLANT: **Ms. Omondi.** FOR 1ST TO 4TH RESPONDENTS: **Ms. Odhong.** FOR 5TH RESPONDENT: No appearance. COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**