Law Society of Kenya v Commissioner of Lands

& 2 others

High Court, at Nakuru December 19, 2001

Ombija J

Civil Case No 464 of 2000

Civil Practice and Procedure – locus standi - public interest cases - meaning of locus standi - party who has standing to sue on behalf of the public - suit by the Law Society of Kenya against the Commissioner of Lands for alleged wrongful allocation of land held by the Government in trust for the members of the Society and the public in general – whether the Law Society had the locus standi to bring such suit - Law Society of Kenya Act section 3 - Constitution of Kenya section 26.

Civil Practice and Procedure - representative suits - procedure in bringing a representative - requirement to obtain the written authority of the persons being represented - Civil Procedure Rules order I rules 8, 12.

The Law Society of Kenya (the plaintiff) brought a suit against the Commissioner of Lands (1st defendant), Lima Ltd (the 2nd defendant) and Usin Gishu Land Registrar (3rd defendant). It claimed that the 1st defendant had unlawfully allocated certain land which was held by the Government in trust for its members and the public generally. The plaintiff averred further that by dint of section 3 of the Law Society of Kenya Act, it had the legal right to sue on behalf of 100 of its members in Eldoret and similarly on behalf of other members of the legal profession in Kenya and members of the public in general. At the hearing of the case, the defendants raised preliminary points of law on the grounds that; the plaintiff had no locus-standi to institute and/or prosecute the suit either on their own behalf or on behalf of members of the public, and that the suit was a non-starter and was incompetent since the plaintiff did not comply with the mandatory provisions of order 1 rules 8 and 12 of the Civil Procedure Rules.

Held:

1. A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleading, and which if argued as a preliminary point may dispose of the suit.

2. Locus-standi signifies a right to be heard. A person must have a sufficiency of interest to sustain his standing to sue in a court of law.

3. For a party to have locus-standi in a matter he ought to show that his own interest particularly has been prejudiced or is about to be prejudiced. If the interest in issue is a public one, then the litigant must show that the matter complained of has injured him over and above any injury, loss or prejudice suffered by the rest of the public in order to have a right to appear in court and be heard on that matter.

4. It is a mandatory requirement under order 1 rule 12 of the Civil Procedure Rules that in a representative suit, the appearance of one of several plaintiffs or defendants requires written authority signed by each of the numerous persons, forming the group on whose behalf the representative suit was/or is to be instituted.

5. The Law Society had not demonstrated by the pleadings that the preservation of the land which was the subject matter of the suit was a legal right of an individual or especially the Society, or that the Society had been injured more than the 30 million Kenyans.

6. If the Law Society had grievances, such grievances would only lie to the public office and institutions mandated under the Constitution, particularly in section 26. The Law Society therefore lacked the locus standi not only to insitute the suit but also to prosecute it on its own behalf or on behalf of the general public.

Preliminary objection allowed, suit dismissed.

Cases

1. Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] EA 696

2. B v Narayana Reddy v State of Kamataka AIR (1985) KAN 99

3. Odinga Raila v Hon Justice Abdul Majid Cockar High Court Miscellaneous Application No 58 of 1997

4. Kariuki GBM v Republic Criminal Application No 6 of 1994

Statutes

1. Law Society of Kenya Act (cap 18) section 3

2. Government Lands Act (cap 280)

3. Registered Land Act (cap 300) section 143

4. Civil Procedure Rules (cap 21 Sub Leg) order I rules 8, 12

Advocates

Mr Kahiga for the Plaintiff.

Mrs Onyango for the 1st and 3rd Defendants.

Mr Mbugua for the 2nd Defendant.