Case Metadata |
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| Case Number: | Civil Application 181 of 2002 |
|---|---|
| Parties: | Law Society of Kenya v Commissioner of Lands & 2 others |
| Date Delivered: | 28 Feb 2003 |
| Case Class: | Civil |
| Court: | Court of Appeal at Nakuru |
| Case Action: | Judgment |
| Judge(s): | Amrittal Bhagwanji Shah, Philip Kiptoo Tunoi, Richard Otieno Kwach |
| Citation: | Law Society of Kenya v Commissioner of Lands & 2 others [2003] eKLR |
| Court Division: | Civil |
| County: | Nakuru |
| Case Summary: | Law Society of Kenya v Commissioner of Lands & 2 others Court of Appeal, at Nakuru February 28, 2003 Kwach, Tunoi & Shah JJ A Civil Application No NAI 181 of 2002 (Application for an injunction or stay of execution from a Ruling and order of High Court at Nakuru and delivered at Nairobi (Ombija J) dated 19th December, 2001 in High Court Civil Case No 464 of 2000. Societies — suit by a society - Law Society of Kenya — nature of the society — whether the society should sue under Societies Act (cap 108) — suits by an ordinary society — requirement to invoke order 1 rule 8 of the Civil Procedure Rules. Civil Practice and Procedure - parties to suits - statutory body established under an Act of Parliament - Law Society of Kenya Act (cap 18) - whether Law Society of Kenya can sue in its own name or it should sue as a society. The Law Society of Kenya brought an application to maintain the status quo in relation to land upon which the Eldoret High Court buildings stood. The society was aggrieved by the allocation of that land to the second respondent herein. Initially the superior court had ruled that the society had no locus standi to sue as it had done as it was not a party whose rights were infringed or injured. Held: 1.The Law Society of Kenya is a statutory body created by an Act of Parliament, viz, the Law Society of Kenya Act (cap 18). 2.As it is a body with a common seal, the Law Society of Kenya need not sue as a society under the Societies Act. (cap 108) 3.An ordinary society wishing to sue would have to invoke the provision of order 1 rule 8 of the Civil Procedure Rules. Application allowed. Cases No cases referred to. Statutes 1. Court of Appeal Rules (cap 9 Sub Leg) rule 5(2)(b) 2. Civil Procedure Rules (cap 21 Sub Leg) order I rule 8 |
| Case Outcome: | Application allowed |
| 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 |
IN THE COURT OF APPEAL
AT NAKURU
(Coram: Kwach, Tunoi & Shah JJ A)
CIVIL APPLICATION NO NAI 181 OF 2002
LAW SOCIETY OF KENYA …..…………….…....…PLAINTIFF
VERSUS
COMMISSIONER OF LANDS & 2 OTHERS…..DEFENDANTS
(Application for an injunction or stay of execution from a Ruling and order of
High Court at Nakuru and delivered at Nairobi (Ombija J) dated 19th December, 2001
in
High Court Civil Case No 464 of 2000.
RULING
We have before us an application brought under rule 5(2)(b) of the Rules of this Court whereby the applicant, the Law Society of Kenya, seeks maintenance of status quo in regard to plots numbered Eldoret Municipality Block 4/53 and 4/55. These two plots are apparently land upon which the Eldoret High Court buildings stand. The Law Society of Kenya (the Society) was aggrieved by the fact of allocation of these plots to Lima Limited, the second respondent herein.
When the suit filed by the Society came up for hearing the Superior Court (Ombija J) heard two preliminary objections which were worded as follows: -
“1. That the plaintiff (that is the Society) has no locus standi to institute and or prosecute this suit either on its own behalf, or on behalf of its members and or on behalf of members of the public.
2. That the plaintiff’s suit is therefore a nonstarter and incompetent.”
The learned judge upon hearing of the preliminary objection reserved his ruling and eventually ruled that the Society had no locus standi to sue as it had done and that it was not a party whose rights were infringed or injured.
At this stage we only have to decide if the Society has an arguable appeal and whether success in the intended appeal would be rendered nugatory if the status quo sought is not granted.
It is clear that the Society is a statutory body created by an Act of Parliament, viz, the Law Society of Kenya Act, Cap 18, Laws of Kenya.
It is a body with a common seal. This is the first arguable point the Society has in that it need not sue as a society under the Societies Act. If it is an ordinary society it would of course have to invoke the provision of
Order 1 rule 8 of the Civil Procedure Rules.
It is also arguable that the Society’s interests could well merge with those of the Judiciary and hence it is interested in the preservation of the land upon which the High Court building in Eldoret is situated. We need go no further into other arguable point or points. The two pointed out by us are enough.
As to whether success in the intended appeal would be rendered nugatory in the event that status quo order is not made is not a matter of problem.
If the parcels of land are alienated by the second respondent the High Court building will belong to someone else. That cannot be allowed to happen.
Considering all the circumstances of the matter before us we order that the status quo now obtaining do remain in force pending the hearing and determination of the intended appeal. The costs of this application will be costs in the intended appeal.
Dated and delivered at Nakuru this 28th day of February, 2003
R.O. KWACH
………………………
JUDGE OF APPEAL
P.K.TUNOI
………………………
JUDGE OF APPEAL
A.B.SHAH
………………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR
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