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ELCPartially AllowedChamber Summons dated 20th March 2014 (Originating Summons matter)· [2014] KEELC 42 (KLR)

Musa Ibusa & 7 others v Morven Developers Limited & 2 others [2014] KEELC 42 (KLR)

Environment and Land Court
17 November 2014
1,661 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed community members to join a land suit but demanded signed written authority from over 1,406 members within 15 days or the case collapses.

What this practically means

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Executive summary

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The Applicants, nine persons purporting to act for over 1,406 members of Saika Maili Saba, Siranga, Ogopa and Mwengenye, moved the court by Chamber Summons dated 20th March 2014 seeking leave to amend the Originating Summons, to substitute and add new Plaintiffs in place of Plaintiffs Nos. 2 to 8 (who had withdrawn after losing internal elections), and to adopt an attached list authorising the new Applicants as representatives. The Defendant opposed by Grounds of Objection, contending the application was an abuse of process and misconceived for want of locus standi and proper written authority under Order 1 Rule 13(2) of the Civil Procedure Rules. In written submissions the Applicants relied on section 18 of the Environment and Land Court Act, which the court noted had been repealed by the Statute Law (Miscellaneous Provisions) Act of 2012, and on Mukisa Biscuit Company vs Westend Distributors Limited. The court framed two issues: whether the Applicants met the requirements for a representative suit, and whether they should be joined as Plaintiffs. It found the attached list unsigned and thus non-compliant with the mandatory written-authority requirement. However, applying D.T. Dobie & Co. (K) Ltd vs Muchina and Article 159(2) of the Constitution, it declined to strike out the suit, finding the defect curable. The Applicants were joined as the 1st to 8th Plaintiffs, granted 15 days to file an Amended Originating Summons and proper written authority, failing which the suit would stand struck out with costs. The Applicants were ordered to meet the costs of the Chamber Summons.

Key legal issues

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01

Whether the requirements for a representative suit under Order 1 Rule 13 were met

Holding

They were not, because the attached list of members was unsigned and did not constitute written, signed authority filed in the case

Reasoning

Order 1 Rule 13(2) requires the authority of persons represented to be in writing, signed by the party giving it and filed in the case. The list attached by the Applicants bore no signatures and gave no written indication of authority. The court held such written authority mandatory and incapable of being overlooked, though curable by directions rather than grounds for striking out the suit.

p. 3
02

Whether the Applicants should be joined as Plaintiffs under Order 1 Rule 1

Holding

Yes; their claim arose from the same acts and transactions as the remaining Plaintiff and raised common questions of law and fact, subject to compliance with the law on representative suits

Reasoning

The Applicants, like the remaining Plaintiff, had been residing on the suit property and had been represented in the suit; the original Plaintiffs had filed the suit in a representative capacity. Their claim thus arose from the same acts and transactions and raised common questions of law, satisfying Order 1 Rule 1 for joinder as Plaintiffs.

p. 4
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Whether the suit should be struck out despite the defective authority

Holding

No; curative directions were appropriate, given Article 159(2) of the Constitution and the principle in D.T. Dobie & Co. (K) Ltd vs Muchina

Reasoning

Relying on Madan JA's dictum that a suit should only be struck out if beyond redemption and incurable by amendment, the court held it was not in the interest of justice to strike out the suit where curative directions could remedy the defect, reinforced by the constitutional command to dispense justice without undue regard to procedural technicalities.

p. 3

Legal principles established

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  • Written authority signed by the persons represented is a mandatory requirement for a representative suit
  • A suit should be sustained rather than terminated where curative measures such as amendment are available

Court orders

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  1. 1.The applicants be and are hereby joined as the 1st - 8th Plaintiffs in this suit
  2. 2.The said 1st - 8th Plaintiffs as joined are granted leave to file and serve an Amended Originating Summons within 15 days from the date of this ruling
  3. 3.The Plaintiffs to file and serve the appropriate written authority given by all the persons the said Plaintiffs are representing as required under Order 1 Rule 13(2) of the Civil Procedure Rules within 15 days from the date of this ruling, together with the Amended Originating Summons, failing which the entire suit shall stand struck out with costs
  4. 4.The Applicants shall meet the costs of the Chamber Summons dated 20th March 2014
Jurisdiction invoked
Environment and Land Court Act; Civil Procedure Rules, 2010 (Order 1 Rule 13)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Musa Ibusa & 7 others v Morven Developers Limited & 2 others [2014] KEELC 42 (KLR)", Case Analysis (2014). Chamber Summons dated 20th March 2014 (Originating Summons matter). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/42/eng@2014-11-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.