[2017] KEELC 930 (KLR)
The court found that the Plaintiffs failed to comply with the mandatory requirements of Order 4 Rule 4 of the Civil Procedure Rules, which stipulate that a verifying affidavit for a corporate plaintiff must be sworn by an officer duly authorized under the company seal. No such authority was produced, and the...
Source-derived case information.
- Citation
- [2017] KEELC 930 (KLR)
- Parties
- Plaintiff: Urban Technical Services; Plaintiff: James Mbogo Kariuki; Defendant: James Wainaina Ndungu; Defendant: John Njenga Mbugua; Defendant: Mbula Munyao
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 71 of 2017
- Procedural Posture
- Preliminary Objection / Ruling on Preliminary Objection
- Outcome
- suit struck out with costs
- Judges
- OA Angote
- Legal Topics
- Locus Standi, Verifying Affidavit Requirements, Corporate Capacity to Sue, Joinder of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Urban Technical Services
Plaintiff
James Mbogo Kariuki
Plaintiff
James Wainaina Ndungu
Defendant
John Njenga Mbugua
Defendant
Mbula Munyao
Defendant
Procedural Posture
Preliminary Objection / Ruling on Preliminary Objection
Legal Issues
- 1 Whether the Plaintiffs' pleadings are fatally defective for failure to comply with Order 4 Rule 3 and 4 of the Civil Procedure Rules.
- 2 Whether the 2nd Plaintiff has locus standi to institute the suit.
- 3 Whether the absence of a verifying affidavit by an authorized officer of the 1st Plaintiff renders the suit incompetent.
Ratio Decidendi
The court found that the Plaintiffs failed to comply with the mandatory requirements of Order 4 Rule 4 of the Civil Procedure Rules, which stipulate that a verifying affidavit for a corporate plaintiff must be sworn by an officer duly authorized under the company seal. No such authority was produced, and the verifying affidavit was not sworn by an authorized officer of the 1st Plaintiff. The court held that this omission is not a mere technicality but a substantive defect that renders the suit incompetent. Additionally, the 2nd Plaintiff's locus standi was challenged, and the court found that the pleadings did not establish proper capacity to sue. Consequently, the suit was struck out for...
Court Disposition
suit struck out with costs
Orders
- The Plaintiffs’ suit is struck out with costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS
ELC. CASE NO. 71 OF 2017
URBAN TECHNICAL SERVICES ........................... 1ST PLAINTIFF
JAMES MBOGO KARIUKI ....................................2ND PLAINTIFF
VERSUS
JAMES WAINAINA NDUNGU................................1ST DEFENDANT
JOHN NJENGA MBUGUA ....................................2ND DEFENDANT
MBULA MUNYAO.................................................3RD DEFENDANT
RULING
1. In the Notice of Preliminary Objection dated 8th May, 2017, the 1st Defendant has averred that the Plaintiffs’ pleadings are fatally defective as they offend the provisions of Order 4 Rule 3 of the Civil Procedure Rules; that the 2nd Plaintiff is not properly joined in these proceedings and that the Application is fatally defective.
2. In his submissions, the 1st Defendant’s advocate submitted that neither the 1st Plaintiff nor the 2nd Plaintiff have been authorized by the registered owner of the property to sign the Verifying Affidavit and other documents; that the provisions for Order 4 Rule 1(4) of the Civil Procedure Rules are mandatory and that the 2nd Plaintiff has no capacity to sue the Defendants.
3. Counsel submitted that the 2nd Plaintiff has no locus standi to institute the suit.
4. On the other hand, the Plaintiffs’ counsel deponed that the pleadings herein demonstrate several contested issue as to title, quiet possession, trespass and attendant unlawful acts; that as tenants, the Plaintiffs need not seek the authority of the landlord when seeking relief as against a trespasser and that the 2nd Plaintiff has instituted the suit in his own capacity.
5. In the Plaint dated 23rd February, 2017, the Plaintiffs described themselves as “a limited liability company duly incorporated under the companies Act” and a male trading as Makuti Leisure Village respectively.
6. The Plaintiffs have further averred that they are the lawful proprietors and Lessees of L.R. No. 18062 and 18063.
7. According to the averments in the Plaint, the Defendants unlawfully fenced off the suit land on the claim that the suit properties belong to them.
8. The Verifying Affidavit annexed on the Plaint was sworn by James Mbogo Kariuki who has described himself as “the Co-Plaintiff.” There is no Verifying Affidavit annexed on the Plaint sworn by the 1st Plaintiff's Director, neither is there evidence to show that the said James Mbogo Kariuki had the authority of the 1st Plaintiff to swear the Verifying Affidavit.
9. Order 4 Rule 4 of the Civil Procedure Rules provides that where the Plaintiff is a corporation, the Verifying Affidavit shall be sworn by an officer of the company duly authorized under the seal of the company to do so.
10. The Plaintiffs have not annexed the authority of the companies under seal authorizing James Mbogo Kariuki to swear the Verifying Affidavit.
11. The provisions of Order 4 Rule 4 of the Civil Procedure Rules are in mandatory terms. The lack of a letter of authority of the 1st Plaintiff cannot be said to be an “undue procedural technicality.”It is mandatory requirement of the law that must be complied with for the current suit to be competent.
12. For those reasons, I strike out the Plaintiffs’ suit with costs.
DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 9TH DAY OF NOVEMBER, 2017.
O.A. ANGOTE
JUDGE