[2007] KEHC 3632 (KLR)
The court found that the plaintiff company was not in existence at the time the lease agreement was purportedly entered into with the defendants. As such, the plaintiff lacked the legal capacity to enter into the agreement or to institute the suit. The absence of locus standi was fatal to the plaintiff's case. The...
Source-derived case information.
- Citation
- [2007] KEHC 3632 (KLR)
- Parties
- Plaintiff: Wheat & Barley Fields Limited; Defendant: Ruth Damaris Wambui Mbiyu; Defendant: David Njunu Mbiyu; Defendant: Margaret Njeri Mbiyu; Defendant: Eddah Wanjiru Mbiyu; Defendant: Isaac Njunu Mbiyu; Defendant: Impulse Developers Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 263 of 2006
- Procedural Posture
- Civil Case / Ruling on Application to Strike Out Plaint
- Outcome
- suit struck out with costs to the defendants
- Legal Topics
- Locus Standi, Striking Out Pleadings, Lease Agreements, Injunctions, Specific Performance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wheat & Barley Fields Limited
Plaintiff
Ruth Damaris Wambui Mbiyu
Defendant
David Njunu Mbiyu
Defendant
Margaret Njeri Mbiyu
Defendant
Eddah Wanjiru Mbiyu
Defendant
Isaac Njunu Mbiyu
Defendant
Impulse Developers Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Strike Out Plaint
Legal Issues
- 1 Whether the plaintiff had locus standi to enter into the lease agreement and file suit.
- 2 Whether the suit should be struck out for want of legal capacity by the plaintiff.
Ratio Decidendi
The court found that the plaintiff company was not in existence at the time the lease agreement was purportedly entered into with the defendants. As such, the plaintiff lacked the legal capacity to enter into the agreement or to institute the suit. The absence of locus standi was fatal to the plaintiff's case. The court therefore upheld the application to strike out the suit, holding that the plaintiff could not maintain the action as it had no legal standing at the material time. Costs were awarded to the defendants.
Court Disposition
suit struck out with costs to the defendants
Orders
- The suit is struck out.
- Costs awarded to the defendants.
Full Case Text
Judgment text and source record
56 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 263 of 2006
1. Land and Environmental Law Division
2. Subject of main suit land
LR8669/3
4296 acres
a) Plaintiff lease land from defendant
b) Defendant 1,2,3 and 4 entered into sale agreement of suit
property
c) Seeks orders of injunction and
d) Specific performance of lease agreement of 1 May 2007
e) Injunction – not granted by Visram J (6 March 2007) because the
plaintiff were not in existence when the lease was entered into.
3. Application of 14 April 2007
a) That the plaintiff suit be struck out.
Reasons:- at time suit field they were not in existence
b) Plaintiff had no locus standi
4. In reply:
a) Striking out is draconian
b) Lease agreement can be expressed or implied
5. Held
Suit be strike out
6. Case law - Nil
7. Advocates
D.M. Munge & Co. Advocates for 1st and 5th defendants/applicants – present
B.W. Kariuki holding brief for P.A Kingara & Co. Advocates for the 6th defendants – absent
B.W. Kariuki for F.F. Bosire Bome & Co. Advocates for 2nd,3rd and 4th defendants – present
WHEAT & BARLEY FIELDS LIMITED ………….......PLAINTIFF
VERSUS
RUTH DAMARIS WAMBUI MBIYU ………......1ST DEFENDANT
DAVID NJUNU MBIYU ………………………...2ND DEFENDANT
MARGARET NJERI MBIYU ………...………. .3RD DEFENDANT
EDDAH WANJIRU MBIYU ………...………… 4TH DEFENDANT
ISAAC NJUNU MBIYU ………………………...5TH DEFENDANT
IMPULSE DEVELOPERS LIMITED...............6TH DEFENDANT
RULING
I: Background
1. Wheat and Barley Files Ltd, is a limited liability company. They have been in possession of the suit premises known as LR. No.86669/3 main Narok Nakuru consisting of 4296 acres. Their lease was entered into with the administratrix of the estate of the late Mbiyu Koinange represented by the 1,2,3 and 4 defendants which effect from 1 May 2005 for 3 years.
2. The plaintiffs discovered that the defendants had entered into a sale agreement to sell the suit land to the 6th defendant - Impulse developers Ltd. They filed a suit for injunction to restrain the defendants form evicting them from the premises. In an application for an injunction by way of chamber summon they were heard by Visram J. It transpired that the plaintiffs had entered into a lease agreement before the said company was incorporated and or come into existence.
3. That as a result the Hon. Judge declined to give any injunction and dismissed the same.
4. What was left was the main suit that sought prayers for injunction the same as in the application.
5. The advocate for defendant 2, 3 and 4 filed this present application of 14 July 2007 seeking to strike out his plaint.
II: Application 14 July 2007
6. Relying on Visram J ruling of 6 March 2007 the defendant prayed that this suit be struck out as there was nothing left.
7. In reply the plaintiff states it is draconian to struck out the suit. They did not deny that they were not in existence at the time of entering the said lease.
III: Finding
8. I find that the plaintiff were not in existence when they entered into a lease with the defendants. They therefore had no locus standi to enter into any agreement and thus to file this suit.
9. I accordingly uphold the application and duly strike out this suit with costs to the defendants.
Dated this 31st day of July 2007 at Nairobi.
M.A. ANG’AWA
JUDGE
D.M. Munge & Co. Advocates for 1st and 5th defendants/applicants – present
B.W. Kariuki holding brief for P.A Kingara & Co. Advocates for the 6th defendants – absent
B.W. Kariuki for F.F. Bosire Bome & Co. Advocates for 2nd,3rd and 4th defendants – present