RULING
1. This ruling is in respect of the notice of preliminary objection dated 29th November 2023, filed by the 1st interested party herein. Through the notice, the 1st interested party seeks to strike the suit herein in limine on grounds that the ex parte applicants lacked locus standi to institute the proceedings and that the ex parte applicants did not obtain leave of the court to institute the proceedings as required by law (Order 53 Rule 1 of the Civil Procedure Rules).
2. The grounds taken up by the 1st interested party are replicated in the 2nd interested party’s grounds of opposition dated 12th October, 2023.
3. Pursuant to directions given on 30th November 2023, the preliminary objection was disposed off by way of written submissions.
SUBMISSIONS
Ex parte Applicant’s Submissions
4. In their submissions filed on 29th January 2024, the ex parte applicants submit that the preliminary objection does not raise a pure point of law as contemplated in the case of Mukisa Biscuits Manufacturing Company Ltd vs. West End Distributors (1969)EA 696.
5. It is the ex parte applicants’ case that the question as to whether they have capacity to bring the proceedings hereto is covered by Articles 22 and 258 of the Constitution. In that regard, the ex parte applicants have made reference to the decision of Court of Appeal’s decision in the case of Mumo Matemu supra where the court stated:-
“...this court cannot fashion nor sanction an invitation to a judicial standard for locus standi that places hurdles on access to the courts except only when such litigation is hypothetical, abstract or an abuse of the court...”.
6. The ex parte applicants have further made reference to the case of John Wekesa Khaoya vs. Attorney General, Petition No.60 of 2012; (2013) e KLR where the court held:-
“The locus standi to file judicial proceedings, representative or otherwise, has been greatly enlarged by the constitution in article 22 and 258 of the constitution which ensures unhindered access to justice...”
7. It is the ex parte applicants case that Articles 22 and 258 of the Constitution roots for every person’s right to institute proceedings claiming that their constitutional rights have been contravened or threatened with contravention; that such proceedings may be instituted by the aggrieved party on its own interest, or by a person acting on behalf of another person, or on behalf of a class of people, in public interest or by an association acting on behalf of its member or members.
8. On whether they sought and obtained leave of the court to institute the proceedings, the ex parte applicants have submitted that the question as to whether they obtained leave to institute the suit is a question of fact hence incapable of forming a basis of the preliminary objection. Nevertheless, the ex parte applicants filed a further affidavit of John Kandie, sworn on 24th January 2024 in which they have attached a copy of the order given by the court on 20th December 2021 granting them leave to institute the impugned proceedings, thereby rendering the interested parties’ contention that the proceedings were instituted without leave of the court moot.
9. Arguing that the preliminary objection is intended to obstruct or confuse the issues raised in the suit, the ex parte applicants urge the court to dismiss it with costs to them.
4th Respondent’s Submissions
10. The 4th respondent filed submissions dated 12th February 2024, reiterating the interested parties contention that the ex parte applicants lacked locus standi to institute the suit hereto.
1st Interested Party’s Submissions
11. In his submissions filed on 17th January 2024, the 1st interested party has listed the factors the court ought to consider while granting leave to institute judicial review proceedings. In the circumstances of this case, he states that he is unable to ascertain whether the factors were considered when the suit herein was filed.
12. The 1st interested party reiterates his contention that the ex parte applicants lack capacity to sustain the proceedings. Pointing out that the instant proceedings have been instituted by “families”, the 1st interested party submits that a family does not have legal capacity to sue or be sued.
13. The 1st interested party contends that the ex parte applicants ought to have provided a list of the members of the families with verifiable particulars of the members and the individual title deeds and/or letters of allotment of the parcels of land on which their claim is hinged.
14. According to the 1st interested party, the ex parte applicants’ case, whether or not meritorious, ought to fail on account of their lack of capacity to institute the suit.
15. The 1st interested party makes reference to Articles 22 and 258 of the Constitution of Kenya 2010, which expanded the right to institute judicial proceedings and submits that the ex parte applicants are not covered by those articles of the Constitution because they do not meet the definition of a person under Article 260 of the Constitution. In that regard, the 1st interested party has made reference to the decision of the Supreme Court in the case of Mumo Matemu v. Trusted Society of Human Rights Alliance and 5 others (2014)e KLR and the decision in the case of John Mining Temoi & another v. Governor of Bungoma County & 17 others (2014)e KLR where Mabeya J, stated:-
“...A literal interpretation of articles 22 and 258, in my view confers upon any person the right to bring in more than two instances, firstly, in the public interest and secondly, where a breach of the constitution is threatened in relation to a right or fundamental freedom. Where one purports to enforce the rights of another, it is my view that there must be a nexus between the parties.”
16. The 1st interested party further relied on the decision of the Court of Appeal in Mumo Matemu vs. Trusted Society of Human rights Alliance & 5 others (2013)e KLR where the court stated:-
“We must hasten to make it clear that the person who moves the court for judicial redress in cases of this kind must be acting bona fide with a view to vindicating the cause of justice. Where a person acts for personal gain or private profit or out of political motivation or other oblique consideration, the court should not allow itself to be seized at the instance of such person and must reject their application as the threshold”.
17. Explaining that the suit before the court concerns alleged private and personal interests of the ex parte applicants over alleged vast but unidentified parcels of land, the 1st interested party submits that the suit is not the kind of case or cases that would be covered by the expanded scope of standing under Article 22 and 258 of the Constitution.
2nd Interested Party’s Submissions
18. In its submissions filed on 12th January 2024, the 2nd interested party submits that the pleadings presented in this case are ambiguous as they have been brought by families, entities which are neither natural persons or artificial persons for them to be able to sue or be sued.
19. The 2nd interested party points out that the ex parte applicants case is brought under statutory provisions, (Order 53 of the Civil Procedure Rules; Section 13(7(b) of the Land and Environment Court Act and Section 8(2) and 9 of the Law reform Act and not the Constitution).
20. Based on the decision in the case of Dande & 3 others vs. Inspector General, National Police Service & 5 others (Petition 6 (E007) and 8 (E010) of 2022 (consolidated) (2023) KESC 40 (KLR) (16th June 2023) (Judgment), the 2nd interested party submits that where a party has not invoked the Constitution of Kenya in his pleadings, he cannot rely on Article 22 and 258 of the Constitution.
21. The 2nd interested party further submits that where a party has not invoked the Constitution in his judicial review proceedings, he ought to demonstrate that he has legal capacity to institute the proceedings.
22. The 2nd interested has further referred to Order 1 Rule 13 of the Civil Procedure Rules and while acknowledging that the deponent of the affidavit sworn in verification of the suit, John Kandie, has described himself as a member of one of the families, submits that the deponent of the verifying affidavit has not provided any evidence that he has authority of the other family members to institute the suit on their behalf.
23. It is the 2nd interested party’s case that in the absence of any evidence that the deponent of the verifying affidavit had authority to bring the suit on behalf of the ex parte applicants families, the suit presented before court is incompetent.
Exparte’s Applicants’ Supplementary Submissions
24. In a rejoinder, the ex parte applicants filed supplementary submissions dated 23rd February 2024, reiterating their contention that their suit is covered by Articles 22 and 258 of the Constitution.
Analysis and determination
25. I have read and considered the pleadings filed in this suit, the preliminary objection taken up by the interested parties and the submissions filed by the parties in respect thereof.
26. It is not in dispute that the suit hereto was instituted by or at the instance of families, that is to say, the Kapchelogol, Kaplobauk, Kaplochuria, Kapkiyai, Kaptowero, Kapchangole, Kapchuliarikow and Kapkabel family.
27. The affidavit sworn in verification of the suit was sworn by John Kandie who described himself as one of the ex parte applicant’s family. The deponent of the verifying affidavit has also deponed that he is authorized by other ex parte applicants’ families to swear the affidavit.
28. Whereas the deponent of the affidavit has described himself as one of the ex parte applicants families, his name does not feature in the families listed in the suit and described as the ex parte applicants. Perhaps, by stating that he is one of the ex parte applicants families, the deponent meant that he is a member of one of the ex parte applicants families. He, however failed to indicate which family. He also failed to provide any documentary proof that he has instructions from his family or the other families to bring the suit on their behalf and failed to provide a list of the members of the respective families who gave him the instructions to file the suit on their behalf.
29. Clearly, the suit as brought, offends the provisions of Order 1 Rule 13 of the Civil Procedure Rules, 2010 which provides as follows:-
“(1)Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceedings....
(2) the authority shall be in writing signed by the party giving it and shall be filed in the case”.
Does failure to file the authority to appear, plead or act on behalf of another party required under Order 1 Rule 13 cited above, render a suit fatally/incurable defective?
30. In answering that question, I adopt the decision in the case of Peeraj General Trading & Contracting Co. Limited, Kenya & Another v Mumias Sugar Company Ltd (2016) e KLR where it was held:-
“An action commenced without authority is capable of being ratified. It would therefore not be in the interest of justice to dismiss this suit on the ground merely that there was no authority filed to institute the suit. that is a defect that does not, in my view, go to the jurisdiction of this court, and is an omission which is curable.”
31. I hasten to point out that the High Court has issued conflicting decisions regarding the issue of failure to comply with the Provisions of Order 1 Rule 13 of the Civil Procedure Rules. In that regard, see the case of Savala & Another v. Ndanyi (Environment and Land Case Civil Suit 248 of 2021 (2022) KEEL 2536 (KLR) (5 July 2022) (Ruling) where it was inter alia held:-
“...In view of the foregoing decisions, is is quite clear that the High court appears to exhibit a conflicting position on whether a party acting on behalf of others without express written authority renders a suit a none starter.
32. In the case of Chalicha Farmers Cooperative Society limited vs. Odhiambo & 9 others (1987) e KLR, the Court of Appeal stated:-
“...George Odhiambo could not have been allowed to represent other defendants without written authority. This caused miscarriage of justice.”
33. Whilst failure to file a written authority does not render a suit fatally defective, it is clear from the decision of the Court of Appeal in the case of Chalicha Farmers Cooperative Society limited vs. Odhiambo & 9 others supra, that the person claiming to be authorized to appear, plead and act for others cannot be authorized by the court to act for the persons he purports to act for unless the written authority required under Order 1 Rule 13 is filed.
34. The suit filed by the ex parte applicants also raises a question as to whether it is fatally/incurable and defective for having being filed by none legal entities, families.
35. The issue of capacity of none legal entities like clans was considered in the case of Phares Omondi Okech & 3 others (Suing for and on behalf of Kasgam Community-Wadhari clan) V. Victory Construction Company Limited & Kisumu Water & another (2015)e KLR where it was held:-
“... An incorporated society cannot sue or be sued in its name, but that its officials or trustees can institute a suit or defend a suit on behalf of the society in accordance with their constitution.... In the case of Mumo Matemu & 5 others – V – Trusted Society of Human Rights Alliance (2014) eKLR the Court of Appeal addressed itself to the provisions of Article 22 and 258 of the constitution and said it is only where a person was acting in the public interest and when instituting proceedings before a court challenging the contravention of the constitution, be they NGOs or associations that they can be permitted to institute proceedings as persons, as defined under the respective statutes and when such definitions of who the bodies are is read together with Article 260 of the constitution.
The court addressed itself on article 260 of the constitution in the case of Kirinyaga United Bar Owners Organization – V- County Secretary Kirinyaga County Government & 6 Others {2014} eKLR. And said the following:
The above constitutional provision for me indicate that a person named with a capacity to act on his own can bring a representative suit on his own behalf and on behalf of others. A person who lacks capacity to institute a suit can also bring an action under Article 22(1) through another person. The person bringing the action should clearly indicate his name in the suit stating that he/she is bringing the action on behalf of another or on his behalf in addition to others who for purposes of clarity must be named and must give authority or mandate if they wish to benefit or obligated from the relief sought. In the absence of a named person, then it becomes difficulty to know whether legal capacity is vested or not. Under Article 260 of the constitution a person includes a company, association or other body of persons whether incorporated or not. Of course bodies have capacity to sue or be sued as the law vests them with legal capacity. What the constitution addresses here are unincorporated bodies or a class of persons such as self help groups. The law does not bestow them with the legal capacity per se but constitution provides for an avenue through which they can competently appear in court and this is through person(s) vested with legal capacity. It is a bit absurd to imagine that the new constitution has opened doors for anybody including people of unsound mind, minors, bankrupts without a next friend, or a person with legal and sound capacity to represent them. Self help group, or community based organizations were created by the government to address poverty eradication and other noble causes, but were not clothed with the capacity to sue but can do so through its elected officials whose description should be given to show who they are and who they represent....the issue of capacity to sue cannot be a matter of procedure as counsel for the plaintiffs submitted to be cured through Article 159 of the constitution by the consideration of substantive justice. The lack of capacity cannot be cured by Article 159 of the constitution that emphasizes on substantive justice or by applying the oxygen principle under Section 1A, 1B and 3A of the Civil Procedure Act....’’
36. I have carefully considered the law as distilled in the cases cited by the parties and the case of Phares Omondi Okech supra, vis a vis the circumstances of this case where the ex parte applicants are indicated as families without providing particulars of who are the members of the families who have brought the suit or on whose behalf the suit is brought. Clearly, the suit does not meet the legal threshold set out in Order 1 Rule 13 of the Civil Procedure Rules and the case of Phares Omondi Okech supra in that families are not legal persons capable of instituting and sustaining suits in their own names.
37. The foregoing notwithstanding, in the special circumstances of this case, where a natural person in the name of John Kandie has sworn an affidavit claiming to be instructed by the families (while appreciating that a family cannot give any instruction, I take reference to instruction by family to be reference to instruction by the family members), I deem the suit to be defective for failure to list the members of the family represented in the suit and for failure to file written authority which defect is curable by seeking and obtaining leave of the court to amend the pleadings to accord with the law.
38. As pointed out in the ruling of this court delivered on 27th July 2022, arising from the ex parte applicant’s application for stay of execution pending hearing and determination of the suit, there are weighty questions of law that arise from the process that led to filing of the impugned suit. It is the considered view of this court that the interested parties should not be allowed to run away from those weighty issues on account that can be addressed by affording the deponent of the affidavit sworn in verification of the suit an opportunity to address the legal gaps in his suit.
39. The upshot of the foregoing is that I decline to uphold the preliminary objection and in discharge of the powers vested in this court under Sections 3A and 100 of the Civil Procedure Act, grant the deponent of the affidavit sworn in verification of the suit, John Kandie, leave to amend the pleadings by listing the members of the families represented in the suit in his pleadings and filing the requisite authority to file the suit.
40. The costs of the preliminary objection shall abide the outcome of the main suit.
41. Orders accordingly.
Dated, signed and delivered at Iten this 23rd day of May, 2024.
L. N. WAITHAKA
JUDGE
Ruling delivered virtually in the presence of;-
Ms. Kiget holding brief for Mr. Arusei for exparte applicant
N/A for the 1-3 respondents
Ms. Alusa for the 4th respondent
N/A for 1st interested party
Ms. Wangare for the 2nd interested party
Court Asst.: Christine