Phares Omondi Okech, James William Nyamanga, Joel Meshack Okwengu & Gilbert Okaya(Suing for and on behalf of Kasgam Community – Wadhari Clan) v Victory Construction Co. Ltd & Kisumu Water & Severage Co. Ltd [2015] KEHC 1333 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISUMU

ENVIRONMENT & LAND COURT

LAND  CASE NO.305 OF 2014

PHARES OMONDI OKECH

JAMES WILLIAM NYAMANGA

JOEL MESHACK OKWENGU

GILBERT OKAYA(Suing for and on behalf of  Kasgam

Community – Wadhari Clan)………..…………….PLAINITFFS

VERSUS

VICTORY CONSTRUCTION CO. LTD............1ST DEFENDANT

KISUMU WATER & SEVERAGE CO. LTD…...2ND DEFENDANT

RULING

1. INTRODUCTION

(a)  Phares Omondi Okech, James William Nyamanga, Joel Meshack Okwengu  and Gilbert Okaya(Suing for and on behalf of Kasagami Community – Wadhari Clan) filed this suit through the plaint dated 15th October 2014, against Victoria Construction Co. Ltd and Kisumu Water & Severage Co. Ltd who are  hereinafter refered to as the 1st and 2nd Defendants respectively.  The plaintiff have averred that they have commenced  ''this suit on a representative capacity of the Kasagam Community and more specifically Wadhari clan''.

(b) The 1st Defendant filed their statement of defence dated 10th November 2014  among other  disputing the plaintiffs legal capacity to file this suit on behalf of Kasagam community or Wadhari Clan and that the suit is bad in law and fatally defective.

(c)  The 2nd Defendant also filed their statement of defence dated 5th November 2014  in which they among other averred that the suit is incompetent, frivolous,scandalous and that the plaintiff are ill suited and would  raise a preliminary objection for the suit to be struck our /dismissed.

2. That the counsel for 1st Defendant filed the notice to raise preliminary objection dated 10th September 2015 on the following ground:

''The plaintiffs lack  legal capacity to commence the suit for and on behalf of Kasagan Community – Wadhari Clan, an a amorphous entirety not known in law and the suit is therefore incurably defective and must be struck out.''

When the matter came up for hearing of the main suit on 6th October 2015, Mr  Nyawara, M/S Wafula and M/S Asuna for 1st Defendant, plaintiffs and 2nd  Defendant respectively agreed that the preliminary objection be heard first.  Each  counsel presented their submissions which are summarized herein below:

(a)  The counsel for 1st Defendant submitted that the plaintiff have not disclosed what  position they hold in the community or Clan that  they have filed the suit on behalf of. He also submitted that the Community and Clan are not legal entities that can  sue or be sued and their membership has not been disclosed.  That a society that  is not registered under Section 4 of the Societies  Act is an illegal Society.  That  this suit is not a public interest suit where the plaintiffs could sue for the community.  The counsel submitted that the suit is bad in law and the Defendants would not be able to recoup their costs if the plaintiffs fail in their claim.  The Counsel refered the  Court to the following decided cases:

3. (i)  Football Kenya Federation - V -  Kenya Premier League Ltd  and 4 Others {2005}  eKLR

(ii) Amina  Hassan & 372 Others {suing as Lekiji Community} -V – Nigal Welbey Trent & Another {2015} eKLR  and

(iii) Dennis Ololoigero & 4 others - V -  The Art of Ventures Ltd & 2 Others {2006} eKLR  and prayed for the suit to be struck out.

(b)  The counsel for the 2nd Defendant adopted the submissions of the 1st Defendant's  Counsel and asked for the suit to be dismissed for lack of capacity to sue.

(c)  The counsel for the plaintiffs opposed the preliminary objection and submitted that the plaintiffs envisioned a relief under article 42 as read with article 70 of the Constitution which entitles them to file suit when their right to a clean environment  is violated.  That the suit is therefore anchored  under article 22 of the Constitution . That the plaintiffs are members of the clan and also owners,of the land that has been violated by the Defendants.  The counsel submitted that as the plaintiff resides in the area where the Community they represent in this case resides, they therefore have the locus Standi to file this suit.  That the prayers in the plaint could be issued under  article 23 (3) (a) (b) (c) and (e) of the Constitution.  That the  written authority signed and filed with the statement allows the plaintiffs to file this suit for their interests, that of the clan and future generation and to allow the preliminary objection would lock out of the court the benefits the plaintiffs seek to confer on the future generation.  That to lock out the plaintiffs would be to give  undue regard to procedural technicalities and the preliminary objection should  therefore be dismissed.

(d) In reply counsel for the 1st Defendant submitted that the issue of capacity cannot  be a procedural technicality as there cannot be a suit without capacity to sue.  He  submitted that the cases he cited has addressed article 22 of the Constitution and  that unless  in situations where there is a contravention of the rights, then the provisions of the article are not available to the plaintiff.  That the written authority the counsel refered is from 2nd to 4th plaintiff authorising the 1st Plaintiff to act for  them in this suit.

3.  The issue for determination is whether the four named plaintiffs have capacity to  institute the suit, for the named Community/Clan.  Secondly whether Kasagam  Community and or the Wadhari Clan is a legal entity .  The court has considered the pleadings filed by the parties, the grounds on  the notice of preliminary objection, and the submissions by counsel and come to the following conclusions:

(a) That 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  {see African Orthodox Church of Kenya – V- Rev Charles Omuroka & Lagos Ministry for Orthodox Renewal{2014) eKLR, Mitinyani Women  Development Group – V – Group Four security Limited{2005} eKLR, Simu  Vendors Association – V – The  Town Clerk, City Council of Nairobi & Another {2005} eKLR, Ertrea Orthodox church – V s Waviwax Generation Limited  {2007} eKLR, Living water Church International – V – City Council of Nairobi  {2008} eKLR  which are cited in Football Kenya Federation – V – Kenya Primer  League Limited & 4 others {2015)} eKLR.  That flowing from the foregoing the plaintiffs have not pleaded that the Kasagam Community and Wadhari Clan are  registered as such under the Society Act or any other statute.  The plaintiffs have also not pleaded whether they are members to the two  groups and the positions  they hold.  They have also not disclosed the names of the members of each of  the two named groups.  The plaintiffs have also not pleaded that there has been a  contravention of their fundamental rights  in the plaint and the submissions by their  counsel  that there has been a contravention is  not therefore supported by the pleadings.  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 plaintiffs herein described themselves in paragraph one of the plaint as  ''adult  of sound mind working for gain and residing at Kasagam......  they are bringing this  suit on a representative capacity of the Kasagam Community and more specifically  Wadhai Clan. '' This clearly shows that they have not filed this action on their own  behalf or on behalf of themselves and the named Community/ Clan.  They state clearly that they have brought this '' suit on a representative capacity '' . However they have not disclosed whether they hold any elected offices with the named Community/clan.  They have not given the names of the members of the named Community /Clan and the court is unable to establish whether they have obtained the authority or mandate of the members of the named community/clan to file this suit.

(b)  That 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 (see  Amina Hassan & 372 others.(suing as Lekiji Community) – V – Nigel Weibay Trent  & another (2011)  eKLR and Football Kenya Federation – V – Kenya Premier  League & 4 others(2015) eKLR.

That the persons name as registered proprietors of land parcels Kisumu/Nyalenda  ''B''415, 416, 417, 422, 433, 434, 2380 and 1674 on which the sludge  is said to  have been unlawfully deposited may individually or jointly commence suit on their names for the desired  prayers.  The court has no way of knowing whether any of the persons named as the  plaintiffs herein is a registered proprietor of any or all of  the said parcels.  If any of them is, then that person (s) should pursue their claim in their names and would not be prejudiced if the preliminary objection is upheld.

4.  That having found as above, the court finds merit is the preliminary objection by the 1st Defendant  and the same is upheld.  The suit is consequently struck out but  with costs to the Defendants.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

12/11/2015

Dated and delivered this 12th  day of  November  2015

In presence of;

Applicants

Respondents

Counsel

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

12/11/2015

12/11/2015

S.M. Kibunja J

Court clerk oyugi

Parties absent

Mr Nyanga for Madialo for Respondent

Court:  Ruling delivered in open court in Presence of Mr Nyanga for Madialo for Respondent.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

12/11/2015

Mr Nyanga – Mr Madialo seeks for leave to appeal.

Court:  Leave to appeal granted.

S.M. KIBUNJA

ENVIRONMENT & LAND – JUDGE

12/11/2015