Waziri Abubakari Ali & Ali Makohka Abdi v Muchani Mutuka [2013] KEHC 2500 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT BUNGOMA

ENVIRONMENTAL CASE NO. 66 OF 2012

WAZIRI ABUBAKARI ALI............................. 1ST PLAINTIFF

ALI MAKOKHA ABDI …................................ 2ND PLAINTIFF

VERSUS

MUCHANI MUTUKA ….................................. DEFENDANTS

RULING

The applicant filed a notice of motion dated  12th November 2012.  While  the application was pending, the respondent raised a preliminary point of  law  that the plaintiffs lack capacity to  bring this suit.

The parties then filed their written submissions. Mr. Onkangi for the respondent submitted   both on  the preliminary point and on the merits of  of the application.  Mr. Kraido only submitted on the  merit of the  preliminary point of law raised.   When the parties appeared before me on 23rd April 2013, they agreed to dispose  of the preliminary point first.  I will therefore give my ruling on the preliminary point of law strictly so that the applicant is not prejudiced.

The preliminary point by the respondent raises the issue that the applicants not  managers of  Webuye Muslim  Academy.  They submit there is no written authority to  sue and/or institute the instant proceedings on behalf of the School and the suit ought to be struck  out.  Further they submit the suit ought to have been brought by   the Trustees of the School and not the applicants who are both strangers  to the school and the purported land.

A second point  was  raised  that this  court lacks jurisdiction  to entertain   this matter as the claim before court is  for interference in the management of  a school and not a  land matter.

The applicant in their  response  stated that the preliminary objection  does not  raise  a pure  point of law as annunciated  in the  Mukisa Biscuit Co. Ltd. vs.  West End Distributors Ltd. [1969] EA 696.  The present preliminary  objection contains points that are suitable for a formal application.  According  to  the applicant, the documents annexed to the replying affidavit shows they have  a nexus to the property hence they have locus standito sue. It will only require  the plaint to  be  ammended.  They urged  the court not to strike out the suit. The plaint at paragraph 3 thereof ;

“That at all  material  times relevant  to this suit, the plaintiffs have been and still are officials of the   management team of  Webuye Muslims Academy, a  private educational  Institution situated  on plot No. Webuye    Municipality/3271. ”.

The claim for  as  presented in paragraph 8

“permanent injunction to restrain the defendant by  himself..................... from entering disrupting the  learning process and in any other manner interfering with management of Webuye Muslim Academy situated on plot No. Webuye  Municipality/3271 pending hearing  and determination of suit.”

I presume the last  words “pending hearing and determination  of this suit” ought  to have been omitted.  Be that as it may, the intention of  quoting the   prayer/claim is to find out if the same gives plaintiffs any locus if the prayer is associated with description given in paaragraph  3 supra.

In my understanding of the description given in paragraph 3 supra and 8, it appears the plaintiffs have  brought this suit on  behalf of the schools as officials. However there is no  description on the position they hold whether as chairman nor secretary of the management team within the entire plaint.

As pointed out by the respondent, they have not annexed any letter of authority from  Webuye Muslim Academy for the plaintiffs to commence this suit on its behalf. I have perused the file and find no minutes filed passing resolution for the suit to be instituted. In the absence of such, it cannot be treated as a matter that can be  cured by amendment. On the submission  that the point raised  does not  meet the bar set out in Mukisa Biscuits case supra, locus standi is  such a core matter in   filing of suits that  it cannot be  ignored.

Consequently, I find the preliminary point of law is  merited. I therefore strike out the suit.  It follows that the application also collapses. The costs of the  application and suit is awarded to the defendant.

RULING DATED, SIGNED, READ and DELIVERED in open court this 5th day of July  2013.

A. OMOLLO

JUDGE.