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|Case Number:||Civil Case 59 of 2005|
|Parties:||Kimani Ngunjiri v David Manyara|
|Date Delivered:||14 Jun 2005|
|Court:||High Court at Nakuru|
|Judge(s):||Daniel Kiio Musinga|
|Citation:||Kimani Ngunjiri v David Manyara  eKLR|
[RULING] Preliminary objection – whether disputes of a domestic body to be settled by court or its constitution – constitution of domestic body stipulating mode of settling disputes – respondent having rushed to court without exhausting machinery provided for under the constitution - when courts may interfere with domestic bodies
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
The respondent filed a notice of preliminary objection to the plaintiff’s suit and prayed that the same be struck out on the following grounds:-
1. That the whole suit is bad in law as it offends the express provisions of the K.A.N.U. (Kenya African National Union) constitution and in particular article 23 thereof.
2. That the whole suit is bad in law as it discloses no cause of action against the defendant.
3. The plaintiff has no capacity to sue in the instant suit.
The respondent did not oppose the said preliminary objection and neither did he attend court inspite the fact that the hearing date for the said application was fixed by consent, having been adjourned on the plaintiff’s instance on the date when it first came up for hearing. The applicant and the respondent herein are both members of KANU and are therefore bound by the party’s constitution. Article 23 of the said constitution deals with dispute resolution of the party affairs and paragraphs 1 and 2 thereof state as follows:-
“1. No member, as a condition – precedent for membership of the party, shall resort to a court of law for the resolution of any dispute arising out of the conduct of any party matter, issue or affairs, unless the machinery here established has been exhausted.
2. If the dispute in question arises out of or relates to the outcome or the conduct of any nominations for elections or elections within the party or any matter connected therewith, the aggrieved member shall refer the same to the Election Appeals Tribunal established under this Article and in the case of any other dispute it shall be referred to arbitration as provided under this Article”. (emphasis supplied)
The question of locus standi in a suit of this nature is very important because an individual member of a party cannot just wake up and purport to file a suit in court for the benefit of the party or a branch thereof without appropriate legal authority to do so. I have also looked at the prayers in the plaint and realised that they do not disclose any substantive claim which the plaintiff has as against the defendant. The prayers are worded as those of a party seeking some interim orders pending the hearing and determination of a suit. They are as follows:-
“REASONS WHEREFORE the plaintiff prays for judgment against the defendant for:-
(a) An urgent temporary injunction restraining the defendant his agents, servants and/or employees from interfering with the plaintiff running and management of the property known as L.R. No. 9/31 Nakuru Town while pending the hearing and determination of this suit. (b) An urgent temporary injunction restraining the defendant his agents, servants and/or employees from interfering with the account number 2025636600 Cooperative Bank Nakuru pending the hearing and determination of this suit.”
There is actually no valid suit before this court if all that the plaintiff is praying for are the interim orders as aforesaid. Those are prayers which can only be made in an appropriate application for interlocutory injunctive orders but not in a main suit. What is supposed to be determined when the suit itself is listed for hearing has not been disclosed. All in all, I uphold the defendant’s preliminary objections and strike out the plaintiff’s suit as being bad in law for the reasons stated herein. The defendant will have the costs of the suit including the costs of this application.