Urban Technical Services & James Mbogo Kariuki v James Wainaina Ndungu, John Njenga Mbugua & Mbula Munyao [2017] KEELC 930 (KLR)

REPUBLIC OF KENYA

IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS

ELC. CASE NO.  71 OF 2017

URBAN TECHNICAL SERVICES ........................... 1ST PLAINTIFF

JAMES MBOGO KARIUKI ....................................2ND PLAINTIFF

VERSUS

JAMES WAINAINA NDUNGU................................1ST DEFENDANT

JOHN NJENGA MBUGUA ....................................2ND DEFENDANT

MBULA MUNYAO.................................................3RD DEFENDANT

RULING

1. In the Notice of Preliminary Objection dated 8th May, 2017, the 1st Defendant has averred that the Plaintiffs’ pleadings are fatally defective as they offend the provisions of Order 4 Rule 3 of the Civil Procedure Rules; that the 2nd Plaintiff is not properly joined in these proceedings and that the Application is fatally defective.

2. In his submissions, the 1st Defendant’s advocate submitted that neither the 1st Plaintiff nor the 2nd Plaintiff have been authorized by the registered owner of the property to sign the Verifying Affidavit and other documents; that the provisions for Order 4 Rule 1(4) of the Civil Procedure Rules are mandatory and that the 2nd Plaintiff has no capacity to sue the Defendants.

3. Counsel submitted that the 2nd Plaintiff has no locus standi to institute the suit.

4. On the other hand, the Plaintiffs’ counsel deponed that the pleadings herein demonstrate several contested issue as to title, quiet possession, trespass and attendant unlawful acts; that as tenants, the Plaintiffs need not seek the authority of the landlord when seeking relief as against a trespasser and that the 2nd Plaintiff has instituted the suit in his own capacity.

5. In the Plaint dated 23rd February, 2017, the Plaintiffs described themselves as “a limited liability company duly incorporated under the companies Act” and a male trading as Makuti Leisure Village respectively.

6. The Plaintiffs have further averred that they are the lawful proprietors and Lessees of L.R. No. 18062 and 18063.

7. According to the averments in the Plaint, the Defendants unlawfully fenced off the suit land on the claim that the suit properties belong to them.

8. The Verifying Affidavit annexed on the Plaint was sworn by James Mbogo Kariuki who has described himself as “the Co-Plaintiff.” There is no Verifying Affidavit annexed on the Plaint sworn by the 1st Plaintiff's Director, neither is there evidence to show that the said James Mbogo Kariuki had the authority of the 1st Plaintiff to swear the Verifying Affidavit.

9. Order 4 Rule 4 of the Civil Procedure Rules provides that where the Plaintiff is a corporation, the Verifying Affidavit shall be sworn by an officer of the company duly authorized under the seal of the company to do so.

10. The Plaintiffs have not annexed the authority of the companies under seal authorizing James Mbogo Kariuki to swear the Verifying Affidavit.

11. The provisions of Order 4 Rule 4 of the Civil Procedure Rules are in mandatory terms.  The lack of a letter of authority of the 1st Plaintiff cannot be said to be an “undue procedural technicality.”It is mandatory requirement of the law that must be complied with for the current suit to be competent.

12. For those reasons, I strike out the Plaintiffs’ suit with costs.

DATED, DELIVERED AND SIGNED IN MACHAKOS THIS 9TH DAY OF NOVEMBER, 2017.

O.A. ANGOTE

JUDGE