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ELCOtherNot stated in the judgment· [2018] KEELC 4536 (KLR)

Alumark Investments Limited v Tom Otieno Anyango & 4 others [2018] KEELC 4536 (KLR)

High Court of Kenya
16 February 2018
BEB M Eboso
2,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court kept a land-buyer's lawsuit against welfare association officials alive, but struck out the advocate because no relief was sought against him.

What this practically means

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Executive summary

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Two striking-out applications under Order 2 Rule 15 of the Civil Procedure Rules were before the court. The 1st-4th defendants, officials of Ukulima Welfare Association, argued that the suit disclosed no reasonable cause of action because the suit property, Kajiado/Kitengela/2016, had been subdivided and transferred to members, that there was no privity of contract with the plaintiff, and that they could not represent the society without authority under Section 41(1) of the Societies Act. The 5th defendant, the advocate in the sale and purchase, similarly sought striking out, contending he was a stranger to the sale agreement. The plaintiff opposed, contending the transfer was illegal, null and void, that the defendants were properly sued as officials of an association without legal personality, and that it had a constitutional right of access to court. The court applied D.T. Dobie & Company (Kenya) Ltd. vs. Muchina, holding that striking-out power is exercised sparingly and that the plaint raised triable issues: whether the sale agreement was unenforceable and whether Land Control Board consent was granted within six months. Relying on Trustees Kenya Redeemed Church v. Samuel M'Obuya, the court held that a society under the Societies Act is not a legal person and can only be sued through its officials; the 1st-4th defendants were therefore properly sued and their application was dismissed. However, since the plaint sought no relief against the 5th defendant, who could simply be called as a witness, his application was allowed and the suit against him struck out.

Key legal issues

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01

Whether the plaint discloses a reasonable cause of action against the 1st-4th defendants

Holding

The application by the 1st-4th defendants was dismissed; triable issues existed on the validity of the transfer and the Land Control Board consent

Reasoning

The court held that striking-out powers are exercised sparingly since the court acts without full facts. The plaintiff's claims that the sale agreement was unenforceable and that Land Control Board consent was not granted within six months raised triable issues determinable only at trial. Further, the 1st-4th defendants, as office bearers of an unincorporated association, were properly sued on its behalf.

p. 3
02

Whether the 5th defendant was a necessary party

Holding

The suit against the 5th defendant was struck out because no relief was sought against him

Reasoning

The plaintiff only sought the 5th defendant's presence to explain the transfer procedures, but no order was sought against him. The court reasoned he could explain the procedures as a witness, and Order 1 rule 3 requires that a defendant be a person against whom a right to relief is alleged. He was therefore not a necessary party.

p. 4
03

Admissibility of evidence on an application under Order 2 Rule 15(1)(a)

Holding

No evidence is admissible; the absence of a cause of action must be evident from the pleadings

Reasoning

The court cited Order 2 Rule 15(2), which bars evidence on applications under sub rule (1)(a), meaning the court must determine from the pleadings alone whether a reasonable cause of action is disclosed. This framed the court's approach in assessing whether triable issues arose from the amended plaint.

p. 3

Legal principles established

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  • The power to strike out pleadings is exercised sparingly and cautiously; a suit with a mere semblance of a cause of action should go to trial
  • A society under the Societies Act is not a legal person and can only sue or be sued through its officials
  • A person against whom no relief is sought in the plaint is not a necessary party and may instead be summoned as a witness

Court orders

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  1. 1.The Notice of Motion by the 1st-4th defendants dated 29/1/2015 is dismissed
  2. 2.The Notice of Motion by the 5th Defendant dated 30/1/2015 is allowed as prayed
Jurisdiction invoked
Original civil jurisdiction; applications under Order 2 Rule 15 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Alumark Investments Limited v Tom Otieno Anyango & 4 others [2018] KEELC 4536 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4536/eng@2018-02-16

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