1.The 6th Respondent raised a preliminary objection and applied for the Petition and Application both dated February 22, 2021 to be struck out on the grounds that;1.The Petitioners as named have no legal capacity to institute these proceedings.2.The Petitioners as named are not persons in law and cannot be litigants in these proceedings in their own standing.3.As a result of(l) and (2) hereinabove, this Honourable Court cannot grant and/or enforce any of the Orders sought for in the Petition and Application as against the Respondents.4.Pursuant to (1),(2) and (3) herein above, the Petition is misconceived, fatally defective, incurable and untenable in law and is an abuse of the process if the Court.
2.The 6th Respondent submitted that the Petitioner has described themselves as a registered nongovernmental organization having its registered offices in Mombasa. That registration of a parent trust deed does not create a legal entity that is capable of suing and being sued.
3.The Petitioner submitted that it is empowered by the Constitution Article 22 which provides for the enforcement of the bill of rights. That the Petitioner was registered around May 3, 2001 when the parent trust deed was endorsed by the Registrar of documents.
4.This court has considered the preliminary objection and the submissions therein. This Court will first have to determine whether the objection raised by the 6th Respondent qualifies to be a Preliminary Objection as described in the case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd (1969) EA 696, where Law J A stated that;Further the Court stated;
5.The 6th Respondents have submitted that the Plaintiff has no Locus Standi or capacity to institute this suit. That due to the lack of the said capacity, the suit is incompetent and should be struck out. In the case of Law Society of Kenya vs Commissioner of Lands & Others, Nakuru High Court Civil Case No 464 of 2000, the Court held that;
6.It is therefore evident that locus standi is the right to appear and be heard in Court or other proceedings and literally, it means ‘a place of standing’. Therefore if a party is found to have no locus standi, then it means they cannot be heard even on whether or not he has a case worth listening to. In the case of Quick Enterprises Ltd v Kenya Railways Corporation, Kisumu High Court Civil Case No 22 of 1999, the Court held that;
7.I find that lack of locus standi can dispose of the matter preliminarily without having to resort to ascertaining of facts. The Preliminary Objection raised by the 6th Respondent fits the description of Preliminary Objection as stated in the Mukisa Biscuit case ( Supra).
8.Having gone over the Notice of preliminary objection dated November 2, 2022 by the Respondent, replying affidavit dated December 13, 2022, Respondents submissions dated January 9, 2023 and Petitioners submission dated January 18, 2023.I find the issue is whether the Petitioner has locus standi to file the suit herein.
9.It is the Respondent’s assertion that the Petitioner has no legal capacity to institute the proceedings herein and the Petitioner are not persons in law and cannot be litigants in proceeding as their own. Article 22 of the 2010 Constitution provides thus; -
10.Article 258 further provides for enforcement of the constitution by the following persons;
11.Thus a person who wishes to enforce the Constitution must fit into one of the categories set out in the two Articles and must specify the capacity in which they have come to court under either of the two constitutional provisions.
13.The Respondent/ Petitioner in their affidavit annexed a copy of their registered trust deed dated May 3, 2003. Under clause 3 the deed established a charity called Commission for Human Rights. It was registered under the Public Trustee (Perpetual Succession) Act Cap 164. The Applicant in their submission averred that the Respondent/ Petitioner fell within the meaning of person under Article 22 of the Constitution but the charity organization was never registered under the Trustee (Perpetual Succession Act cap 164 and lacked capacity to sue or be sued in the name provided. However, no evidence was provided to support this allegation. It is trite law that he who alleges must prove.
14.The Petitioner/ Respondent described itself as a Non-governmental organization in its petition. Section 2 of Non- Governmental organization coordination Act 1990 describe such organization as groupings or associations and this falls under the description of ‘persons’ as envisioned under Article 258 and 260 of the Constitution. I find that the preliminary objection is unmerited and therefore dismissed with costs.
It is so ordered.