'1. The application for determination is dated 15/5/2025 and the orders sought were framed as follows:
1) …………. Spent;
2) …………. Spent;
3) THAT the suit herein be struck off for failing to comply with Order 4 rule 1(4) of the Civil Procedure Rules;
4) THAT, the costs of this application be borne by the Respondent and Counsel on record.
2. The application which was brought under the provisions of section 1A, 1B, 3 and 3A of the Civil Procedure Act; and Order 4 rule 1 (4) of the Civil Procedure Rules, was premised on the grounds numbered therein and supported by the affidavit sworn by Abdallah Athman Sheelali, the Applicant herein.
3. The Applicant stated that the persons verifying the Petition and pleadings on behalf of the Petitioner were strangers to the Petitioner company; that a search conducted on 4/12/2024 at the Registrar of Companies revealed that the directors and shareholders of the Petitioner were different from the persons making averments before this honourable court. He exhibited a copy of the CR 12 of Kivulini Cottages Limited as at 9/11/2024. The Applicant added that the Petition is also not accompanied by a company resolution thus ought to be struck out. The Applicant is apprehensive that unless the sought orders are issued, the Respondents will continue frustrating his interests and rights in the suit property without any colour of right and that he will resultantly suffer irreparable loss.
4. The Petitioner, through the affidavit sworn by Kevin Ndung’u Mbugua, a director of Kivulini Cottages Limited, on 20/5/2025 opposes the application. The deponent asserts that the Petition was properly instituted, with the supporting affidavit having been sworn under a valid Power of Attorney registered on 19/7/2023 and donated by a majority shareholder and director of the company, one Ahmed Mohamed Sharif Abdul Rahim Mohamed.
5. Mr. Mbugua maintains that the Petitioner is, and has always been, in possession of the suit property, and alleges that the Applicant attempted to take possession unlawfully but was stopped by law enforcement and a court injunction.
6. The deponent further avers that he acquired the Petitioner company as a going concern in April 2024, and that changes in shareholding do not affect the legal standing or the right of the company to continue its proceedings. He refutes the allegations of fraud, stating that relevant government departments and the Directorate of Criminal Investigations have discredited the Respondent’s claims and documents.
7. He argues that the application is a delay tactic intended to derail the hearing, which is already scheduled. He also contends that constitutional petitions touching on fundamental rights should be determined on merit and not dismissed on technicalities.
8. Accordingly, the Petitioner urges the Court to dismiss the application and allow the Petition to proceed to full hearing.
9. The Application was canvassed by way of written submissions.
The Applicant’s submissions
10. The 1st Respondent/Applicant, Abdallah Athman Sheelali, filed written submissions dated 3/6/2025 in support of the application, seeking to strike out the Petition on grounds of procedural impropriety and want of proper corporate authorization.
11. Counsel for the Applicant submitted that the Petition was instituted in contravention of Order 4 Rule 1(4) of the Civil Procedure Rules, which requires that where a plaintiff is a corporation, the verifying affidavit must be sworn by an officer duly authorized under the seal of the company. It was argued that at the time of filing the Petition on 27/10/2023, the Petitioner company’s CR12 (dated 9/11/2023) indicated two directors, namely Mohamed Mukhtar Sayid and Ahmed Mohamed Sharif Abdul Rahim Mohamed Sharif, yet the verifying affidavit was not sworn by either of them, nor was any board resolution authorizing the institution of the Petition filed.
12. The Applicant further submitted that the Power of Attorney relied upon by the Petitioner, dated 19/7/2023, does not reference the company—Kivulini Cottages Limited—as the donor and solely relates to the sale of land between private individuals. As such, counsel contended that the document cannot be construed as a resolution of the company or as authority to institute the present Petition. The failure to provide company authorization at the time of filing, in the Applicant’s view, renders the Petition fatally defective. In support of this argument, the Applicant relied on various authorities, including: Affordable Homes Africa Ltd v Henderson & 2 Others [2004] eKLR, which emphasized that companies must authorize legal action through resolutions of either the board of directors or shareholders; Assia Pharmaceuticals v Nairobi Veterinary Centre Ltd HCCC No. 391 of 2000, where it was held that suits instituted on behalf of a company must be supported by a resolution and that ratification cannot be presumed; and Kedong’ Ng’ombe Ranch Ltd v Kisorio & Another (E014 of 2024), where the Court struck out pleadings that lacked demonstrable company authorization at inception.
13. The Applicant also addressed the Petitioner’s reliance on Article 159(2)(d) of the Constitution, arguing that while courts are enjoined to administer justice without undue regard to procedural technicalities, this constitutional provision was never intended to override fundamental procedural rules. Reference was made to the Supreme Court decision in Raila Odinga v IEBC & Others [2013] eKLR where it was held that Article 159(2)(d) must not be invoked to dispense with procedural safeguards essential to fair litigation.
14. Lastly, the Applicant criticized the Petitioner’s introduction of a later CR12 showing a change in directorship as an afterthought, noting that no formal ratification was ever filed to regularize the initial defect. Counsel urged the Court to evaluate the Petition based on the legal status and documentation available at the time of filing, not subsequent changes. It was therefore the Applicant’s submission that the Petition is incurably defective and ought to be struck out in its entirety with costs.
The Petitioner’s submissions
15. In their submissions dated 11/6/2025, counsel for the Petitioner submitted that under Article 22 (1) of the Constitution, the right of access to justice is paramount to every person and Sub-article 2 (c) thereon goes further to state that proceedings may be instituted by a person acting in the public interest. Counsel added that a person under Article 260, is defined to include a company and to impose formalistic procedural requirements such as the mandatory filing of a board resolution would restrict the constitutional right under Article 22.
16. Counsel argued that the Mutunga Rules, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, emphasize flexibility and access to justice. He stated that the said rules do not require a resolution while lodging a constitutional petition otherwise they would have expressly provided as such. Counsel urged the Court to be guided by Article 159 (2) (d) of the Constitution of Kenya, and the case of D.T. Dobie (k) Limited v Muchina [1982] KLR 1 where the Court held that no suit should be dismissed or struck out unless it discloses no cause of action or is otherwise an abuse of the court process.
17. Counsel further submitted that where a petition is supported by an affidavit sworn by a person holding a valid and duly registered power of attorney, such an affidavit is competent and valid. To buttress this argument, counsel relied on the case of Masefield Trading (K) Ltd v Rushmore Company Ltd & Francis M. Kibui [2001] eKLR.
18. Counsel argued that by virtue of Section 16 of the Companies Act, 2015, a company, upon incorporation, has the capacity to exercise all the functions of a natural person, including the right to sue and be sued, irrespective of any changes to its membership or management. That the doctrine of separate legal entity affirms that changes in a company’s internal structure do not affect its legal standing. To support this argument, counsel relied on the case of Victor Mabachi & Another v Nurturn Bates Ltd [2013] eKLR and Karachiwalla (Nairobi) Limited v Burell International Limited [2019] eKLR.
19. Counsel urged the court to find that the absence of a board resolution is not fatal to the petition.
ANALYSIS AND DETERMINATION
20. I have considered the application, the rival affidavits, the written submissions of the parties, and the authorities cited. The issue for determination is whether the Petition herein ought to be struck out for failure to comply with Order 4 Rule 1(4) of the Civil Procedure Rules and for lack of proper corporate authority at the time of its institution.
21. Order 4 Rule 1(4) provides that a verifying affidavit accompanying a pleading by a corporation shall be sworn by an officer of the company who is duly authorized under the company seal. It is not in dispute that the Petition herein was supported by an affidavit sworn by one Adam Abdulla Ibrahim, acting under a Power of Attorney donated by Ahmed Mohamed Sharif Abdul Rahim Mohamed, who was a majority shareholder and director of the company at the time. It is also undisputed that the CR12 dated 9/11/2023 indicated the company’s directors as Mohamed Mukhtar Sayid and Ahmed Mohamed Sharif Abdul Rahim Mohamed Sharif.
22. The primary objection raised by the Applicant is that no company resolution was filed to authorize the filing of the Petition and that the deponent to the supporting affidavit was not one of the listed directors of the company. The Applicant takes the position that this renders the Petition incurably defective and liable for striking out.
23. The Petitioner, on the other hand, argues that the Constitutional framework, specifically Articles 22 and 260, coupled with the Mutunga Rules, permit a more flexible approach. The Petitioner further maintains that the Power of Attorney was validly executed by a principal officer of the company and was sufficient to authorize the institution of proceedings. The Petitioner also contends that striking out a constitutional petition on procedural grounds would amount to prioritizing form over substance, contrary to Article 159(2)(d) of the Constitution.
24. The tension between procedural compliance and the need to uphold substantive justice in constitutional litigation has been addressed in several authorities. The Supreme Court in Raila Odinga v IEBC & Others [supra] cautioned that while courts should not be enslaved to procedural technicalities, procedural rules remain important tools for fair adjudication and must not be disregarded altogether.
25. However, it is clear that from Order 4 rule 1 (4), there is no requirement that the authority given to the deponent of the verifying affidavit be filed. The failure to file the authorization, therefore, in my view, may be a ground for seeking particulars. Of course, if a suit is filed without a resolution of a corporation, it may attract some consequences. However, the failure to file the same with the Petition does not invalidate the suit.
26. I associate myself with the decision in Republic v Registrar General and 13 Others Misc. Application no 67 of 2005 [2005] eKLR that the position in law is that such a resolution by the Board of Directors of a company may be filed any time before the suit is fixed for hearing as there is no requirement that the same be filed at the same time as the suit. Its absence, is therefore, not fatal to the suit.
27. On the issue of the Power of Attorney, while it is true that the document refers to a sale of land, the affidavit of Kevin Ndung’u Mbugua (filed in response to this application) avers that the company was sold as a going concern and that the internal management and shareholding changed thereafter. Importantly, the Petitioner is a body corporate with perpetual succession. Thus, the company’s capacity to sue or be sued continues irrespective of internal changes.
28. I am persuaded that strict compliance with Order 4 Rule 1(4) ought not to override substantive justice, particularly where there is no evidence of prejudice to the Respondents and where the litigation raises serious issues regarding land rights and alleged fraud.
29. In the absence of clear demonstration of mala fides or abuse of process, the Court must lean in favour of sustaining the Petition for hearing on merit, consistent with the principle that litigation should as far as possible be determined substantively rather than on technical grounds. The Petitioner is at liberty to regularize its pleadings before the hearing date.
30. Accordingly, I find no sufficient basis to strike out the Petition. The petition shall be heard on 1/10/2025 as scheduled.
Dated, signed and delivered at Malindi via electronic mail on this 24th day of September, 2025.
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1) …………. Spent;
2) …………. Spent;
3) THAT the suit herein be struck off for failing to comply with Order 4 rule 1(4) of the Civil Procedure Rules;
4) THAT, the costs of this application be borne by the Respondent and Counsel on record.
2. The application which was brought under the provisions of section 1A, 1B, 3 and 3A of the Civil Procedure Act; and Order 4 rule 1 (4) of the Civil Procedure Rules, was premised on the grounds numbered therein and supported by the affidavit sworn by Abdallah Athman Sheelali, the Applicant herein.
3. The Applicant stated that the persons verifying the Petition and pleadings on behalf of the Petitioner were strangers to the Petitioner company; that a search conducted on 4/12/2024 at the Registrar of Companies revealed that the directors and shareholders of the Petitioner were different from the persons making averments before this honourable court. He exhibited a copy of the CR 12 of Kivulini Cottages Limited as at 9/11/2024. The Applicant added that the Petition is also not accompanied by a company resolution thus ought to be struck out. The Applicant is apprehensive that unless the sought orders are issued, the Respondents will continue frustrating his interests and rights in the suit property without any colour of right and that he will resultantly suffer irreparable loss.
4. The Petitioner, through the affidavit sworn by Kevin Ndung’u Mbugua, a director of Kivulini Cottages Limited, on 20/5/2025 opposes the application. The deponent asserts that the Petition was properly instituted, with the supporting affidavit having been sworn under a valid Power of Attorney registered on 19/7/2023 and donated by a majority shareholder and director of the company, one Ahmed Mohamed Sharif Abdul Rahim Mohamed.
5. Mr. Mbugua maintains that the Petitioner is, and has always been, in possession of the suit property, and alleges that the Applicant attempted to take possession unlawfully but was stopped by law enforcement and a court injunction.
6. The deponent further avers that he acquired the Petitioner company as a going concern in April 2024, and that changes in shareholding do not affect the legal standing or the right of the company to continue its proceedings. He refutes the allegations of fraud, stating that relevant government departments and the Directorate of Criminal Investigations have discredited the Respondent’s claims and documents.
7. He argues that the application is a delay tactic intended to derail the hearing, which is already scheduled. He also contends that constitutional petitions touching on fundamental rights should be determined on merit and not dismissed on technicalities.
8. Accordingly, the Petitioner urges the Court to dismiss the application and allow the Petition to proceed to full hearing.
9. The Application was canvassed by way of written submissions.
The Applicant’s submissions
10. The 1st Respondent/Applicant, Abdallah Athman Sheelali, filed written submissions dated 3/6/2025 in support of the application, seeking to strike out the Petition on grounds of procedural impropriety and want of proper corporate authorization.
11. Counsel for the Applicant submitted that the Petition was instituted in contravention of Order 4 Rule 1(4) of the Civil Procedure Rules, which requires that where a plaintiff is a corporation, the verifying affidavit must be sworn by an officer duly authorized under the seal of the company. It was argued that at the time of filing the Petition on 27/10/2023, the Petitioner company’s CR12 (dated 9/11/2023) indicated two directors, namely Mohamed Mukhtar Sayid and Ahmed Mohamed Sharif Abdul Rahim Mohamed Sharif, yet the verifying affidavit was not sworn by either of them, nor was any board resolution authorizing the institution of the Petition filed.
12. The Applicant further submitted that the Power of Attorney relied upon by the Petitioner, dated 19/7/2023, does not reference the company—Kivulini Cottages Limited—as the donor and solely relates to the sale of land between private individuals. As such, counsel contended that the document cannot be construed as a resolution of the company or as authority to institute the present Petition. The failure to provide company authorization at the time of filing, in the Applicant’s view, renders the Petition fatally defective. In support of this argument, the Applicant relied on various authorities, including: Affordable Homes Africa Ltd v Henderson & 2 Others [2004] eKLR, which emphasized that companies must authorize legal action through resolutions of either the board of directors or shareholders; Assia Pharmaceuticals v Nairobi Veterinary Centre Ltd HCCC No. 391 of 2000, where it was held that suits instituted on behalf of a company must be supported by a resolution and that ratification cannot be presumed; and Kedong’ Ng’ombe Ranch Ltd v Kisorio & Another (E014 of 2024), where the Court struck out pleadings that lacked demonstrable company authorization at inception.
13. The Applicant also addressed the Petitioner’s reliance on Article 159(2)(d) of the Constitution, arguing that while courts are enjoined to administer justice without undue regard to procedural technicalities, this constitutional provision was never intended to override fundamental procedural rules. Reference was made to the Supreme Court decision in Raila Odinga v IEBC & Others [2013] eKLR where it was held that Article 159(2)(d) must not be invoked to dispense with procedural safeguards essential to fair litigation.
14. Lastly, the Applicant criticized the Petitioner’s introduction of a later CR12 showing a change in directorship as an afterthought, noting that no formal ratification was ever filed to regularize the initial defect. Counsel urged the Court to evaluate the Petition based on the legal status and documentation available at the time of filing, not subsequent changes. It was therefore the Applicant’s submission that the Petition is incurably defective and ought to be struck out in its entirety with costs.
The Petitioner’s submissions
15. In their submissions dated 11/6/2025, counsel for the Petitioner submitted that under Article 22 (1) of the Constitution, the right of access to justice is paramount to every person and Sub-article 2 (c) thereon goes further to state that proceedings may be instituted by a person acting in the public interest. Counsel added that a person under Article 260, is defined to include a company and to impose formalistic procedural requirements such as the mandatory filing of a board resolution would restrict the constitutional right under Article 22.
16. Counsel argued that the Mutunga Rules, the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013, emphasize flexibility and access to justice. He stated that the said rules do not require a resolution while lodging a constitutional petition otherwise they would have expressly provided as such. Counsel urged the Court to be guided by Article 159 (2) (d) of the Constitution of Kenya, and the case of D.T. Dobie (k) Limited v Muchina [1982] KLR 1 where the Court held that no suit should be dismissed or struck out unless it discloses no cause of action or is otherwise an abuse of the court process.
17. Counsel further submitted that where a petition is supported by an affidavit sworn by a person holding a valid and duly registered power of attorney, such an affidavit is competent and valid. To buttress this argument, counsel relied on the case of Masefield Trading (K) Ltd v Rushmore Company Ltd & Francis M. Kibui [2001] eKLR.
18. Counsel argued that by virtue of Section 16 of the Companies Act, 2015, a company, upon incorporation, has the capacity to exercise all the functions of a natural person, including the right to sue and be sued, irrespective of any changes to its membership or management. That the doctrine of separate legal entity affirms that changes in a company’s internal structure do not affect its legal standing. To support this argument, counsel relied on the case of Victor Mabachi & Another v Nurturn Bates Ltd [2013] eKLR and Karachiwalla (Nairobi) Limited v Burell International Limited [2019] eKLR.
19. Counsel urged the court to find that the absence of a board resolution is not fatal to the petition.
ANALYSIS AND DETERMINATION
20. I have considered the application, the rival affidavits, the written submissions of the parties, and the authorities cited. The issue for determination is whether the Petition herein ought to be struck out for failure to comply with Order 4 Rule 1(4) of the Civil Procedure Rules and for lack of proper corporate authority at the time of its institution.
21. Order 4 Rule 1(4) provides that a verifying affidavit accompanying a pleading by a corporation shall be sworn by an officer of the company who is duly authorized under the company seal. It is not in dispute that the Petition herein was supported by an affidavit sworn by one Adam Abdulla Ibrahim, acting under a Power of Attorney donated by Ahmed Mohamed Sharif Abdul Rahim Mohamed, who was a majority shareholder and director of the company at the time. It is also undisputed that the CR12 dated 9/11/2023 indicated the company’s directors as Mohamed Mukhtar Sayid and Ahmed Mohamed Sharif Abdul Rahim Mohamed Sharif.
22. The primary objection raised by the Applicant is that no company resolution was filed to authorize the filing of the Petition and that the deponent to the supporting affidavit was not one of the listed directors of the company. The Applicant takes the position that this renders the Petition incurably defective and liable for striking out.
23. The Petitioner, on the other hand, argues that the Constitutional framework, specifically Articles 22 and 260, coupled with the Mutunga Rules, permit a more flexible approach. The Petitioner further maintains that the Power of Attorney was validly executed by a principal officer of the company and was sufficient to authorize the institution of proceedings. The Petitioner also contends that striking out a constitutional petition on procedural grounds would amount to prioritizing form over substance, contrary to Article 159(2)(d) of the Constitution.
24. The tension between procedural compliance and the need to uphold substantive justice in constitutional litigation has been addressed in several authorities. The Supreme Court in Raila Odinga v IEBC & Others [supra] cautioned that while courts should not be enslaved to procedural technicalities, procedural rules remain important tools for fair adjudication and must not be disregarded altogether.
25. However, it is clear that from Order 4 rule 1 (4), there is no requirement that the authority given to the deponent of the verifying affidavit be filed. The failure to file the authorization, therefore, in my view, may be a ground for seeking particulars. Of course, if a suit is filed without a resolution of a corporation, it may attract some consequences. However, the failure to file the same with the Petition does not invalidate the suit.
26. I associate myself with the decision in Republic v Registrar General and 13 Others Misc. Application no 67 of 2005 [2005] eKLR that the position in law is that such a resolution by the Board of Directors of a company may be filed any time before the suit is fixed for hearing as there is no requirement that the same be filed at the same time as the suit. Its absence, is therefore, not fatal to the suit.
27. On the issue of the Power of Attorney, while it is true that the document refers to a sale of land, the affidavit of Kevin Ndung’u Mbugua (filed in response to this application) avers that the company was sold as a going concern and that the internal management and shareholding changed thereafter. Importantly, the Petitioner is a body corporate with perpetual succession. Thus, the company’s capacity to sue or be sued continues irrespective of internal changes.
28. I am persuaded that strict compliance with Order 4 Rule 1(4) ought not to override substantive justice, particularly where there is no evidence of prejudice to the Respondents and where the litigation raises serious issues regarding land rights and alleged fraud.
29. In the absence of clear demonstration of mala fides or abuse of process, the Court must lean in favour of sustaining the Petition for hearing on merit, consistent with the principle that litigation should as far as possible be determined substantively rather than on technical grounds. The Petitioner is at liberty to regularize its pleadings before the hearing date.
30. Accordingly, I find no sufficient basis to strike out the Petition. The petition shall be heard on 1/10/2025 as scheduled.
Dated, signed and delivered at Malindi via electronic mail on this 24th day of September, 2025.
'