Mission SOS International Incorporated v Mission SOS Africa INC & 4 others [2024] KEHC 9498 (KLR)

Mission SOS International Incorporated v Mission SOS Africa INC & 4 others (Civil Suit E005 of 2023) [2024] KEHC 9498 (KLR) (26 July 2024) (Ruling)

Neutral citation: [2024] KEHC 9498 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Civil Suit E005 of 2023

F Gikonyo, J

July 26, 2024

Between

Mission SOS International Incorporated

Plaintiff

and

Mission SOS Africa INC

1st Defendant

Dishon Mbugwa

2nd Defendant

Gabriel G. Charo

3rd Defendant

Joseph Lerina Kiptek

4th Defendant

Margaret Nabwoba

5th Defendant

Ruling

1st defendant cannot be sued 1. By a notice dated December 4, 2023, the 1st defendant raised three preliminary objections, namely: -a.That the 1st defendant is registered society under the Societies Act, and cannot be sued in its name.b.That the plaintiff is not registered under the Companies Act, 2015, and therefore cannot sue in Kenya; andc.That, the plaintiff in its submission stated that it is registered society and therefore cannot sue in its own name.

2. Parties filed submissions to substantiate or deny the objections.

Analysis and determinationNature of preliminary objection 3. A preliminary objection is a pure point of law which does not require probing of evidence to prove; and is capable of decimating the suit (Mukisa Biscuit Manufacturing Co. LtdvWest End Distributors Ltd [1969] E.A. 696).

4. The 1st defendant argued that, it is a society registered under the Societies Act and can only be sued through its registered officials.

5. In paragraph 3 of the plaint, the 2nd, 3rd, and 4th defendants have been sued as registered officials of the 1st defendant. This fact was admitted in the defence and counterclaim. Therefore, the objection is unsuccessful.

6. Similarly, the plaintiff has stated in paragraph 1 of the plaint that it is registered in the USA as a non-profit making corporation and has provided articles of incorporation in support thereof. The 1st defendant did not establish the plaintiff cannot sue in Kenya.

7. In sum, the preliminary objections fail and are dismissed. No order as to costs.

DATED, SIGNED, AND DELIVERED AT KILGORIS THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 26TH DAY OF JULY, 2024………………………………………………HON. F. GIKONYO M.JUDGEIn the Presence of: -C/A: Leken/NyangaresiWambui for Applicant/Defendants – PresentDr. Khakula for Applicant/Plaintiff – Present