1. The Plaintiff’s Notice of Motion application dated 3/9/2024 was brought under sections 1A, 1B, 3, 3A and 63 (c) of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules, 2010. The orders sought therein are as follows: -
a. That the court do grant an injunction restraining the Defendant/respondent/agents/servants/employees or any other person howsoever from demolishing, evicting, wasting or in any other way interfering with the quiet enjoyment of the suit property known as Plot No. MN/III/500, pending the hearing and determination of the application inter parties or suit or further orders of the court;
b. That a declaration be made to the effect that Plot No. L.R No. MN/III/500 (now MN/III/1035/1036) and Plot No. MN/III/1611 are distinct from one another and the Defendant/respondent has no interest in property known as Plot No. L.R No. MN/III/500 (now MN/III/1035/1036) at all and has no business executing a judgment against it or parties residing thereon;
c. That the honourable court do grant any relief it deems fit and expedient to meet the ends of justice;
d. That costs of the application be provided for.
2. The application is premised on the grounds enumerated on the face thereof and supported by an affidavit sworn on 3/9/2024 by Alfonse Onditi Onchieku, said to be the Plaintiff’s director, who stated that the Plaintiff hotel is situate on the land known as L.R No. MN/III/500 (Now MN/III/1035/1036); that the Defendant obtained judgment (annexed as Exh “AOO1”) in respect of plot L.R No. 1611/15/III/MN (CR No. 22740) against some third parties; that vide a letter dated 4/3/2024, the Defendant offered to sell the property subject of the said judgment to the Plaintiff ostensibly as squatters thereon; that letter resulted to several correspondences between the parties and at one point the Defendant made a draft sale agreement (Exh “A005”). As part of due diligence, the Plaintiff appointed a surveyor to determine whether L.R No. MN/III/500 (Now MN/III/1035/1036) corresponds with L.R No. 1611/15/III/MN CR No. 22740; that the surveyors observed that the hotel measures approximately 0.1 Ha, located on L.R No. MN/III/500 (Now MN/III/1035/1036), and that L.R No. MN/III/1611 is approximately three blocks away from the former. The deponent stated that the Defendant has continued to exert pressure on the Plaintiff by using the police force, thus making the demolition real.
3. The Defendant opposed the application. It filed a Notice of Preliminary Objection dated 24/9/2024, and a replying affidavit sworn on the even date by Mohamed Wanyoike. The preliminary objection was based on the following grounds: -
1) That the Plaintiff has no locus standi to institute and/or prosecute the suit as the Plaintiff;
2) That the suit is a non-starter and incompetent as the Plaintiff did not comply with the mandatory provisions of Order 1 Rule 8 and 12 of the Civil Procedure Rules;
3) The Applicant’s notice of motion as filed is seriously misconceived, is frivolous, bad in law and nothing other than an utter abuse of the process of the Court;
4) The Applicant’s application is ill conceived, fatally defective and incompetent and ought to be struck out.
4. In the replying affidavit, the said Mohamed deposed that the Defendant is the registered proprietor of the land known as 1611 (Original No. 495/15/Section III Mainland North) containing by measurement 1.121 Ha or thereabouts. He stated that the Defendant obtained judgment against some third parties over the said land on 22/2/2018 and a decree issued on 26/3/2018. He added that the Plaintiff was neither a party in that suit, nor a party to the agreement exhibited as “A005”. Owing to the aforesaid, the deponent averred that the Plaintiff lacks locus standi to present the application and suit as a whole. He thus urged the court to dismiss the application and strike out suit.
5. This court ordered that the preliminary objection be disposed of first and by way of written submissions.
Plaintiff’s Submissions Dated 9/10/2024.
6. Counsel for the Plaintiff raised three issues for determination. Firstly, what is locus standi and whether it has relevance or can be equated with jurisdiction of the court. Counsel submitted that locus standi can be given by the Constitution or statute or common law. He added that the bill of rights confers the Plaintiff rights under Article 48 and 50 (1) to access to justice. To counsel, there need not be any contractual relationship as rights would be tortious, constitutional or contractual; that the meaning of a person under Article 260 is broad to encompass a limited liability company or a corporate entity. Counsel added that a person who was not a party to the proceedings cannot be executed against. To support his arguments, counsel relied on the cases of Misc. Civil App. No. 3,8 and 9 of 2019 Odhiambo Owiti & Co. Advocates v Dominion Farms Ltd, Sukari Industries Ltd (Objector) [2021] eKLR and Patrick Kingori Warugongo v James Nderitu & another [2024] eKLR and Adetoun Aladeji v Nigeria Breweries (PLC) SC 91/2002.
7. Counsel further submitted that this court has jurisdiction to hear and determine the matter by virtue of Article 162 (2) (b) of the Constitution and Section 13 of the Environment and Land Court Act, and that the Plaintiff has right to access the court.
8. The second issue was whether or not the preliminary objection meets the threshold of a preliminary objection. To define what constitutes a preliminary objection, counsel found guidance in the case of Mukhisa Biscuits Manufacturing Ltd v Westend Distributors Ltd Civil Appeal No. 9 of 1969 EA 696. It was counsel’s submission that Order 1 Rule 10 allows a court to order the substitution of a plaintiff therefore, the option of striking out a suit for the reason stated by the Defendant is a draconian system which has no place in the Constitutional principle of judicial administration under Article 159 (2) (d) which directs that justice shall be administered without undue regard to technicalities.
9. Counsel added that the judgment held by the Defendant is in persona against only those parties in ELC No. 15 of 2016, as such, the Defendant should not be allowed to execute against the Plaintiff who is on a different plot.
10. Finally, counsel had this to say on the issue of costs- that by virtue of Section 27 of the Civil Procedure Act, the court shall have discretion and that costs would ordinarily follow the event unless the judge for good reason orders otherwise. To support this argument, counsel relied on the case of E.G.M V E.W.G [2021] eKLR. He argued that, for defending the preliminary objection, the Plaintiff is entitled to costs.
Defendant’s Submissions Dated 1/10/2024.
11. It was counsel’s submissions that the issue of locus standi goes into the jurisdiction of the court and must be resolved at the earliest opportunity, as was held in the case of Owners of the Motor Vessel “Lilian S” v Caltex Oil (K) Limited [1989] KLR 1. Counsel further submitted that locus standi was defined in the case of LSK v Commissioner of Lands & Others Nakuru High Court Civil Case No 464 of 2000 to the effect that a person must have sufficiency of interest to sustain his standing to sue in a court of law, which the Plaintiff has not demonstrated. Counsel argued that the Defendant never entered into a contract with the Plaintiff herein but was at all material times in contact with Alfonce Onditi in regard to the sale of the quarter acre to be carved out of the plot no. MN/III/1611. To buttress the issue of privity of contract, counsel cited the case of Savings & Loan (K) Limited v Kanyenje Karangatia Gakombe & another and Dunlop Pneumatic Tyre Co Limited v Selfridge & Co. Ltd [1915] AC 847.
12. According to counsel, where a suit is instituted by a person with no capacity or locus standi to sue, such a suit is null and void from the beginning, as was held in Beth Wanjiku Kamau, the legal representative of David Kamau Njoroge (deceased) v Savings and Loan (K) Limited [2006] eKLR.
13. Counsel argued that the Plaintiff herein lacks locus standi to support the present suit on its own behalf or on behalf of the third parties as it was not a party to any contract or Civil Suit No. 15 Of 2016 between the third parties and the Defendant herein.
ANALYSIS AND DETERMINATION
14. I have considered the application, supporting affidavit, replying affidavit, preliminary objection, submissions and authorities presented before this Court. The following issues thus arise for determination: -
i) Whether the Plaintiff has locus standi to institute the suit;
ii) Who ought to meet the costs of the preliminary objection.
15. The court in Alfred Njau and Others -v- City Council of Nairobi [1982] KAR 229, held that: -
“…the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”.
16. In sum, locus standi refers to a person’s right to appear before and be heard in a court of law. Without it, even when a party has a meritorious case, they cannot be heard because of that. Locus standi is so important that in its absence, a party has no basis to claim anything before the Court.
17. The Defendant averred that the Plaintiff lacks locus standi to institute the present suit since it was neither a party to the suit where the impugned judgment was delivered nor a party to the agreement for purchase of the suit property. With all due respect to the Defendant’s counsel, I do think he has quite an erroneous understanding of the Plaintiff’s case herein. The Plaintiff’s case is that the Defendant, a decree holder in Malindi ELC No. 15 of 2016, where the subject was the land identified as MN/III/1611, is threatening to demolish the Plaintiff’s hotel apparently constructed on MN/III/500 (Now MN/III/1035/1036) by virtue of that decree in the former suit. The Plaintiff is not challenging the decision in Malindi ELC No. 15 of 2016, neither is it seeking to enforce an alleged sale agreement. Its case, as I understand it to be, is purely for this court to determine whether the Plaintiff hotel is constructed on the Defendant’s land or a different one. In the circumstances, I find that the issue of locus standi as raised is improper in this case.
18. The upshot is the notice of preliminary objection dated 24/9/2024 is dismissed with costs to the plaintiff. Ruling on the application dated 3/9/2024 shall be delivered on 22nd May 2025 Parties shall file and exchange submissions in respect of that application by that date. Interim orders issued on 9/9/2024 are hereby extended till then.
Dated, signed and delivered at Malindi via electronic mail on this 6th day of May 2025.
a. That the court do grant an injunction restraining the Defendant/respondent/agents/servants/employees or any other person howsoever from demolishing, evicting, wasting or in any other way interfering with the quiet enjoyment of the suit property known as Plot No. MN/III/500, pending the hearing and determination of the application inter parties or suit or further orders of the court;
b. That a declaration be made to the effect that Plot No. L.R No. MN/III/500 (now MN/III/1035/1036) and Plot No. MN/III/1611 are distinct from one another and the Defendant/respondent has no interest in property known as Plot No. L.R No. MN/III/500 (now MN/III/1035/1036) at all and has no business executing a judgment against it or parties residing thereon;
c. That the honourable court do grant any relief it deems fit and expedient to meet the ends of justice;
d. That costs of the application be provided for.
2. The application is premised on the grounds enumerated on the face thereof and supported by an affidavit sworn on 3/9/2024 by Alfonse Onditi Onchieku, said to be the Plaintiff’s director, who stated that the Plaintiff hotel is situate on the land known as L.R No. MN/III/500 (Now MN/III/1035/1036); that the Defendant obtained judgment (annexed as Exh “AOO1”) in respect of plot L.R No. 1611/15/III/MN (CR No. 22740) against some third parties; that vide a letter dated 4/3/2024, the Defendant offered to sell the property subject of the said judgment to the Plaintiff ostensibly as squatters thereon; that letter resulted to several correspondences between the parties and at one point the Defendant made a draft sale agreement (Exh “A005”). As part of due diligence, the Plaintiff appointed a surveyor to determine whether L.R No. MN/III/500 (Now MN/III/1035/1036) corresponds with L.R No. 1611/15/III/MN CR No. 22740; that the surveyors observed that the hotel measures approximately 0.1 Ha, located on L.R No. MN/III/500 (Now MN/III/1035/1036), and that L.R No. MN/III/1611 is approximately three blocks away from the former. The deponent stated that the Defendant has continued to exert pressure on the Plaintiff by using the police force, thus making the demolition real.
3. The Defendant opposed the application. It filed a Notice of Preliminary Objection dated 24/9/2024, and a replying affidavit sworn on the even date by Mohamed Wanyoike. The preliminary objection was based on the following grounds: -
1) That the Plaintiff has no locus standi to institute and/or prosecute the suit as the Plaintiff;
2) That the suit is a non-starter and incompetent as the Plaintiff did not comply with the mandatory provisions of Order 1 Rule 8 and 12 of the Civil Procedure Rules;
3) The Applicant’s notice of motion as filed is seriously misconceived, is frivolous, bad in law and nothing other than an utter abuse of the process of the Court;
4) The Applicant’s application is ill conceived, fatally defective and incompetent and ought to be struck out.
4. In the replying affidavit, the said Mohamed deposed that the Defendant is the registered proprietor of the land known as 1611 (Original No. 495/15/Section III Mainland North) containing by measurement 1.121 Ha or thereabouts. He stated that the Defendant obtained judgment against some third parties over the said land on 22/2/2018 and a decree issued on 26/3/2018. He added that the Plaintiff was neither a party in that suit, nor a party to the agreement exhibited as “A005”. Owing to the aforesaid, the deponent averred that the Plaintiff lacks locus standi to present the application and suit as a whole. He thus urged the court to dismiss the application and strike out suit.
5. This court ordered that the preliminary objection be disposed of first and by way of written submissions.
Plaintiff’s Submissions Dated 9/10/2024.
6. Counsel for the Plaintiff raised three issues for determination. Firstly, what is locus standi and whether it has relevance or can be equated with jurisdiction of the court. Counsel submitted that locus standi can be given by the Constitution or statute or common law. He added that the bill of rights confers the Plaintiff rights under Article 48 and 50 (1) to access to justice. To counsel, there need not be any contractual relationship as rights would be tortious, constitutional or contractual; that the meaning of a person under Article 260 is broad to encompass a limited liability company or a corporate entity. Counsel added that a person who was not a party to the proceedings cannot be executed against. To support his arguments, counsel relied on the cases of Misc. Civil App. No. 3,8 and 9 of 2019 Odhiambo Owiti & Co. Advocates v Dominion Farms Ltd, Sukari Industries Ltd (Objector) [2021] eKLR and Patrick Kingori Warugongo v James Nderitu & another [2024] eKLR and Adetoun Aladeji v Nigeria Breweries (PLC) SC 91/2002.
7. Counsel further submitted that this court has jurisdiction to hear and determine the matter by virtue of Article 162 (2) (b) of the Constitution and Section 13 of the Environment and Land Court Act, and that the Plaintiff has right to access the court.
8. The second issue was whether or not the preliminary objection meets the threshold of a preliminary objection. To define what constitutes a preliminary objection, counsel found guidance in the case of Mukhisa Biscuits Manufacturing Ltd v Westend Distributors Ltd Civil Appeal No. 9 of 1969 EA 696. It was counsel’s submission that Order 1 Rule 10 allows a court to order the substitution of a plaintiff therefore, the option of striking out a suit for the reason stated by the Defendant is a draconian system which has no place in the Constitutional principle of judicial administration under Article 159 (2) (d) which directs that justice shall be administered without undue regard to technicalities.
9. Counsel added that the judgment held by the Defendant is in persona against only those parties in ELC No. 15 of 2016, as such, the Defendant should not be allowed to execute against the Plaintiff who is on a different plot.
10. Finally, counsel had this to say on the issue of costs- that by virtue of Section 27 of the Civil Procedure Act, the court shall have discretion and that costs would ordinarily follow the event unless the judge for good reason orders otherwise. To support this argument, counsel relied on the case of E.G.M V E.W.G [2021] eKLR. He argued that, for defending the preliminary objection, the Plaintiff is entitled to costs.
Defendant’s Submissions Dated 1/10/2024.
11. It was counsel’s submissions that the issue of locus standi goes into the jurisdiction of the court and must be resolved at the earliest opportunity, as was held in the case of Owners of the Motor Vessel “Lilian S” v Caltex Oil (K) Limited [1989] KLR 1. Counsel further submitted that locus standi was defined in the case of LSK v Commissioner of Lands & Others Nakuru High Court Civil Case No 464 of 2000 to the effect that a person must have sufficiency of interest to sustain his standing to sue in a court of law, which the Plaintiff has not demonstrated. Counsel argued that the Defendant never entered into a contract with the Plaintiff herein but was at all material times in contact with Alfonce Onditi in regard to the sale of the quarter acre to be carved out of the plot no. MN/III/1611. To buttress the issue of privity of contract, counsel cited the case of Savings & Loan (K) Limited v Kanyenje Karangatia Gakombe & another and Dunlop Pneumatic Tyre Co Limited v Selfridge & Co. Ltd [1915] AC 847.
12. According to counsel, where a suit is instituted by a person with no capacity or locus standi to sue, such a suit is null and void from the beginning, as was held in Beth Wanjiku Kamau, the legal representative of David Kamau Njoroge (deceased) v Savings and Loan (K) Limited [2006] eKLR.
13. Counsel argued that the Plaintiff herein lacks locus standi to support the present suit on its own behalf or on behalf of the third parties as it was not a party to any contract or Civil Suit No. 15 Of 2016 between the third parties and the Defendant herein.
ANALYSIS AND DETERMINATION
14. I have considered the application, supporting affidavit, replying affidavit, preliminary objection, submissions and authorities presented before this Court. The following issues thus arise for determination: -
i) Whether the Plaintiff has locus standi to institute the suit;
ii) Who ought to meet the costs of the preliminary objection.
15. The court in Alfred Njau and Others -v- City Council of Nairobi [1982] KAR 229, held that: -
“…the term Locus Standi means a right to appear in Court and conversely to say that a person has no Locus Standi means that he has no right to appear or be heard in such and such proceedings”.
16. In sum, locus standi refers to a person’s right to appear before and be heard in a court of law. Without it, even when a party has a meritorious case, they cannot be heard because of that. Locus standi is so important that in its absence, a party has no basis to claim anything before the Court.
17. The Defendant averred that the Plaintiff lacks locus standi to institute the present suit since it was neither a party to the suit where the impugned judgment was delivered nor a party to the agreement for purchase of the suit property. With all due respect to the Defendant’s counsel, I do think he has quite an erroneous understanding of the Plaintiff’s case herein. The Plaintiff’s case is that the Defendant, a decree holder in Malindi ELC No. 15 of 2016, where the subject was the land identified as MN/III/1611, is threatening to demolish the Plaintiff’s hotel apparently constructed on MN/III/500 (Now MN/III/1035/1036) by virtue of that decree in the former suit. The Plaintiff is not challenging the decision in Malindi ELC No. 15 of 2016, neither is it seeking to enforce an alleged sale agreement. Its case, as I understand it to be, is purely for this court to determine whether the Plaintiff hotel is constructed on the Defendant’s land or a different one. In the circumstances, I find that the issue of locus standi as raised is improper in this case.
18. The upshot is the notice of preliminary objection dated 24/9/2024 is dismissed with costs to the plaintiff. Ruling on the application dated 3/9/2024 shall be delivered on 22nd May 2025 Parties shall file and exchange submissions in respect of that application by that date. Interim orders issued on 9/9/2024 are hereby extended till then.
Dated, signed and delivered at Malindi via electronic mail on this 6th day of May 2025.