Nicholas Achila & 5 others v Stephene Wainaina & 2 others; Kilonzo Geofrey Wambua and or the law firm of Wambua Kilonzo & Co. Advocates [2020] KEELC 2552 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicants have locus standi to bring this suit on behalf of the two companies
- 2.If so, whether the Applicants have met the threshold for grant of an injunction or whether an order can be made for the release of the original title to M/s Munikah & Co. Advocates
Key legal issues
#Locus standi of employees to sue on behalf of their employer companies
The Applicants, being neither shareholders nor directors of the registered owner companies, have no locus standi; there was no evidence the companies could not act in their own name.
Article 22(2)(a) permits a person to sue on behalf of another who cannot act in their own name. The registered owner, Energoprojekt, was capable of suing: evidence showed it filed a suit in 2008 decided in 2017 with company representation, and its directors gave instructions to the interested party's firm as recently as the previous year. Standing therefore failed, which was enough to dispose of the suit.
Whether the Applicants would have been entitled to an injunction had they had standing
No. The Applicants were not candid on oath (directors had not been unreachable since 2005 as claimed) and had no prima facie case or interest capable of protection.
An injunction is an equitable remedy; the clean-hands doctrine disqualifies litigants who lie on oath. The Applicants were not owners of the suit property and showed no interest capable of protection, so they failed on the prima facie case limb of the injunction test.
Whether the court could order surrender of the original title to Munikah & Co. Advocates
No. The law firm was not a plaintiff, and the interested party had shown the original title was retrieved and taken for investigations, so any order would be in vain.
The firm holding an earlier surrender order under HCCC No. 60 of 2003 should pursue enforcement through that suit. The interested party's affidavit showed the title was retrieved from Multiple Hauliers Ltd during criminal investigations, so an order to produce it could not be granted.
Legal principles established
#- A company capable of filing its own suit cannot be litigated for by a person who is neither a shareholder nor a director unless it is shown that the company cannot act in its own name
- An applicant for an equitable remedy must come with clean hands
Court orders
#- 1.The preliminary objection by the Respondents is upheld
- 2.The entire suit as well as the application is struck out
- 3.Costs to the Respondents and the interested party
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes; the Applicants invoked Article 22 of the Constitution
Relief refused
#Permanent injunction against the Defendants and Interested Party in respect of the suit property
Applicants lack locus standi; no prima facie case; unclean hands
Order for release of the original lease title and transfer documents to Munikah & Co. Advocates
The law firm is not a plaintiff and the Applicants cannot litigate on its behalf; the interested party does not hold the title
Order to the Chief Land Registrar prohibiting all transactions on the suit property
Suit struck out for want of standing
Costs
Costs to the Respondents and the interested party
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I therefore find that the Applicants have no locus standi to bring this suit.
A party has to initiate proceedings where he/she has standing. The Applicants herein have no standing to bring this suit. I uphold the preliminary objection by the Respondents and proceed to strike out the entire suit as well as the application with costs to the Respondents and the interested party.
The Applicants are seeking an injunction which is an equitable remedy. He who comes to equity has to come with clean hands.
There is no basis upon which the Applicants can be granted an injunction as they do not have any prima facie case against the Respondents.
Issues in the judgment
#The judgment inconsistently dates the Notice of Motion, stating it was dated 5th February 2019 but later referring to an application dated 5th February 2014
The judgment misspells 'locus standi' as 'lucus standi' when recording the preliminary objection
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nicholas Achila & 5 others v Stephene Wainaina & 2 others; Kilonzo Geofrey Wambua and or the law firm of Wambua Kilonzo & Co. Advocates [2020] KEELC 2552 (KLR)", Case Analysis (2020). Not stated in the judgment (suit in respect of LR No. 209/14475 (IR No. 96998)); Notice of Motion dated 5th February 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2552/eng@2020-05-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.