MICHAEL KISHON OLE RISA & 8 others v GIDEON S. KONCHELLAH & 15 others [2010] eKLR

Key Facts

Issues

• The court found that government officials were improperly joined in their official capacities but ruled this a curable defect, allowing amendment or striking off those defendants with cost compensation to the plaintiffs.
• The court sustained the objection that the plaintiffs failed to serve the mandatory 30-day statutory notice under Section 13A of the Government Proceedings Act before initiating proceedings against the Attorney General and other government officials, rendering the process incompetent.
• The court questioned the plaintiffs' authority to represent the group ranch, as they did not disclose their roles or obtain court authorization for a representative suit. The case was allowed to proceed with an order to amend the plaint to clarify their standing.
• The court reserved the issue of whether the suit was statute barred, as the amended plaint alleged fraud discovered in 2004 but was filed in 2009, exceeding the 12-month limit for tort claims against the Government under Section 13A(2)(b). Determination required evidence at trial.
• The court noted the absence of a verifying affidavit for the amended plaint, which added new defendants and fraud allegations. However, it ruled this a curable irregularity and allowed the plaintiffs time to rectify it without striking out the case.

Holdings

• The court dismissed the objection concerning the statute of limitations on fraud, holding that the issue requires factual determination at trial and cannot be resolved as a preliminary objection.
• The court ordered the transfer of the suit to Kisii High Court, where the subject land is situated and all parties reside, to ensure convenience and expedite proceedings.
• The court found the lack of a verifying affidavit for the amended plaint to be a mere irregularity, not a fatal defect, and allowed the plaintiffs 30 days to regularize the issue without striking out the suit.
• The court sustained the objection regarding non-compliance with Section 13A of the Government Proceedings Act, as no 30-day notice was served on the Attorney General before filing the amended plaint. This omission rendered the proceedings against the 13th to 16th defendants (Government officials) incompetent.
• The court rejected the objection that the plaintiffs are an amorphous group, noting it is not a pure point of law and allowing them to amend the plaint to clarify their roles and authority to sue.

Remedies

• The court dismissed preliminary objections related to misjoinder of parties, statute of limitations, and the plaintiffs' amorphous status as not being pure points of law.
• The plaintiffs were directed to bear the costs associated with the preliminary objection proceedings.
• Plaintiffs were granted 30 days to amend the plaint and provide a verifying affidavit in accordance with Order VII Rule 1(2) of the Civil Procedure Rules.
• The court ordered the transfer of the matter to Kisii High Court for hearing and determination due to the suit property being situated in Transmara and all parties residing in the area.

Legal Principles

• The court held that non-compliance with Section 13A of the Government Proceedings Act, which requires a 30-day notice to the Attorney General before initiating proceedings against the Government, renders such proceedings incompetent and fatal to the suit. The failure to serve this notice was sustained as a valid preliminary objection.
• The absence of a verifying affidavit accompanying the amended plaint was deemed an irregularity rather than a fatal defect. The court emphasized substantive justice over procedural formalities, allowing plaintiffs to regularize the omission without striking out the suit.
• Misjoinder of parties (e.g., suing Government officials in their official capacities without proper authority) was found not to invalidate the suit. The court stated such issues can be cured by amendment or by striking off improperly joined parties.
• The court ruled that the failure to file the suit in the correct territorial jurisdiction (Kisii High Court) did not warrant striking it out. Instead, the case was ordered to be transferred to ensure just and expeditious disposal.
• The court held that the statute of limitations issue (alleged fraud discovered in 2004 but suit amended in 2009) must be determined at trial based on evidence, not as a preliminary objection. This aligns with prior rulings reserving limitation issues for substantive hearings.

Precedent Name

• SAMWEL OYWA WAYUGA V TRUSTEES OF THE CHURCH OF PROVINCE OF KENYA SOUTH NYANZA DIOCESE
• JOSEPH KIPCHIR SIGILAI V GOTAB SAMIK ENTERPRISE LTD & 4 OTHERS
• MUKISA BISCUIT MANUFACTURING CO. LTD V WEST END DISTRIBUTORS LTD
• GAWO V NAIROBI CITY COUNCIL
• GEORGE WANYOIKE V AG
• GARDEN SQUARE LTD V SAMMY BOIT KOGO & ANOTHER
• SAMSON LEREYA & OTHERS V THE HON. THE AG & OTHRS

Cited Statute

• Land (Group Representative) Act
• Civil Procedure Rules
• Government Proceedings Act
• Public Authorities Limitations Act

Judge Name

Passage Text

• The court determined that the statute of limitations issue requires factual determination at trial: 'It is in contest when the cause of action arose and whether the cause of action is statute barred. I would agree with the case law that was relied upon that, that is an issue to be determined at the hearing of the main suit.'
• The court held that non-compliance with Section 13A of the Government Proceedings Act was fatal to the plaint. It stated: 'I hold the same view that the 30 day statutory notice to the AG is a precondition to filing a suit against the Government (AG). Failure to comply renders the whole process incompetent and the defendants' objection on that point is sustained.'
• The court allowed plaintiffs to cure the lack of a verifying affidavit: 'Failure to file a verifying affidavit to accompany the amended plaint has not prejudiced the defendants in any way... The plaintiffs can be allowed time to amend the plaint and bring the proper parties.'