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ELCStruck OutOriginating Summons dated 25th April, 2016

Daniel Momagul Kandei & 2 others v Kamanga Holdings Limited & 44 others [2017] KEELC 3614 (KLR)

Environment and Land Court
18 January 2017
2,998 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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Individual members of a Kenyan group ranch cannot sue over ranch land unless they are the officially elected and incorporated group representatives.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nyeri (L N Waithaka J) disposed of a notice of preliminary objection dated 6th May 2016 together with the applications dated 24th April 2016 and 28th June 2016 in a suit brought by members of Lossesia Group Ranch challenging titles acquired in the group ranch. The defendants contended that the plaintiffs lacked capacity to sue under the Land (Group Representatives) Act Cap 287, that the claim for cancellation of titles could not be brought by Originating Summons under Order 37 Rule 8 of the Civil Procedure Rules, and that the court lacked jurisdiction under the Land Adjudication Act. The court framed three issues: capacity, propriety of the Originating Summons, and jurisdiction. On the first, adopting Wendoh J in the Simon Tapai case, it held that only duly incorporated group representatives have power to sue on behalf of a group ranch under Sections 5, 7 and 8 of the Act, so the plaintiff members had no locus standi. On the second, adopting Angote J in Cyril J Haroo and Malindi Musketeers, it held that a claim for cancellation of a registered title requires detailed evidence and cannot be litigated by Originating Summons, which is reserved for simple matters; such a suit filed contra-statute is a nullity ab initio. Those findings were dispositive, so the court declined to address the remaining jurisdictional objections or the merits of the applications. The preliminary objection was sustained and the Originating Summons dated 25th April 2016 was struck out with costs to the respondents.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiffs have capacity to sue in their own name whilst claiming interest vested under the Land (Group Representatives) Act on behalf of Lossesia group ranch?
  2. 2.Whether the application offends the provisions of Order 37(1) of the Civil Procedure Rules?
  3. 3.Whether this court has jurisdiction to hear the dispute brought before it?

Key legal issues

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01

Capacity of the plaintiffs to sue on behalf of Lossesia Group Ranch

Holding

The plaintiffs had no capacity to sue in their own names or on behalf of the group ranch, as they were not the group representatives under the Land (Group Representatives) Act; the dispute resolution mechanisms under Section 10 of the Act should first be exhausted.

Reasoning

Reading Sections 5, 7 and 8 of the Land (Group Representatives) Act Cap 287, the court found that a group meeting elects representatives, incorporation confers on them the power to sue and be sued in the corporate name, and members lack locus standi. Relying on Wendoh J in the Simon Tapai case, the court held the plaintiffs must first exhaust internal dispute resolution mechanisms and comply with the Act before approaching the court.

p. 4
02

Propriety of the suit instituted by Originating Summons

Holding

The suit offended Order 37 Rule 8 of the Civil Procedure Rules because the claim sought cancellation of titles registered under the Registered Land Act, which cannot be litigated by Originating Summons.

Reasoning

Adopting the reasoning of Angote J in Cyril J Haroo and Malindi Musketeers, the court held that cancellation of a title requires detailed evidence, examination and cross-examination of parties and possibly expert witnesses; such complex and contentious questions of fact and law cannot be determined on an Originating Summons, which is intended only for simple matters. A suit filed contra-statute is a nullity ab initio.

p. 6
03

Jurisdiction of the court over the dispute

Holding

The court did not reach a definitive finding on the jurisdictional objections under the Land Adjudication Act and the Government Proceedings Act, as the findings on capacity and mode of commencement were dispositive.

Reasoning

Having found the suit bad for lack of locus standi and for offending Order 37 Rule 8, the court held that those determinations sufficed to dispose of the issues framed, and expressly declined to venture into the remaining objections, including the Land Adjudication Act timing and Government Proceedings Act limitation arguments.

p. 6

Legal principles established

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  • Under Sections 5, 7 and 8 of the Land (Group Representatives) Act, only the duly incorporated group representatives have capacity to sue on behalf of a group ranch, not individual members
  • A claim for cancellation of a title registered under the Registered Land Act cannot be brought by way of Originating Summons by virtue of Order 37 Rule 8 of the Civil Procedure Rules
  • Where issues raised are complex and contentious, a judge should dismiss an Originating Summons and direct parties to pursue their claim by ordinary suit

Court orders

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  1. 1.The preliminary objection is sustained
  2. 2.The Originating Summons dated 25th April, 2016 is struck out with costs to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Environment and Land Court jurisdiction (Court's jurisdiction under the Environment and Land Court Act challenged under the Land Adjudication Act and Land (Group Representatives) Act Cap 287)

Relief refused

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The plaintiffs' suit as instituted by Originating Summons (including the applications dated 24th April 2016 and 28th June 2016)

The plaintiffs had no locus standi to sue on behalf of the group ranch and the claim for cancellation of title could not be brought by Originating Summons under Order 37 Rule 8

p. 6

Costs

Struck out with costs to the respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot of the foregoing is that the preliminary objection is sustained and the Originating summons dated 25th April, 2016 is struck out with costs to the respondents.
p. 6Final orders - striking out of the suit
the plaintiffs not being the group representatives contemplated under the aforementioned sections of the law, have no capacity to sue on behalf of the group ranch, the members of the group ranch or on their own behalf
p. 4Locus standi under the Land (Group Representatives) Act
cancellation of a title deed or a Certificate of Lease is not a simple issue which can be decided by way of an originating summons thus the provisions of Order 37 Rule 8
p. 5Improper mode of commencing a claim for cancellation of title
When it becomes obvious that the issues raise complex and contentious questions of facts and law, a judge should dismiss the summons and leave the parties to pursue their claim by ordinary suit.
p. 5Limits of Originating Summons procedure

Issues in the judgment

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minor

The judgment does not print the actual case title of the suit; only the Originating Summons date (25th April, 2016) is given, and the plaintiffs' names are not stated.

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, "Daniel Momagul Kandei & 2 others v Kamanga Holdings Limited & 44 others [2017] KEELC 3614 (KLR)", Case Analysis (2017). Originating Summons dated 25th April, 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3614/eng@2017-01-18

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