IN THE HIGH COURT OF KENYA
AT NAIROBI
The defendant swore a supporting affidavit to the effect that he and the plaintiffs were intended trustees of Gentiana Self Help Centre (Gentiana). At the centre of things was a dispute relating to the property for the intended trust and so the plaintiffs ought not have sued by filing a plaint.
On 15.2.11 some 7 grounds of opposition were filed claiming that this application was filed too late in the day. Therefore the defendant/applicant was guilty of laches. That this was the applicant’s way of delaying the final disposal of the suit. The applicant had submitted to the jurisdiction of this court by filing pleadings and affidavits. He cannot turn round now and impeach that very jurisdiction. Further, that the plaintiffs’ names were clearly stated in the plaint. They exist with locus in law to sue. The trust deed exhibited by the applicant was duly lodged and stamped. Duty was collected. It is a valid deed and so because Gentiana was neither a trust nor a company, the plaintiffs were in order to sue as individuals. This was a suit between trustees ie. trustees inter se in their individual names and Order 31 Civil Procedure Rules permitted suing in individual names. The applicant had not complied with the court orders of 20/7/10. He was thus in contempt and this court cannot hear him until and unless he complies. And that the applicant had wrongly invoked the powers of Order 31 Civil Procedure Rules. Then submissions were filed.
Moving to registration of Gentiana Self-Help Centre, the court was told that it was never at any time registered so the plaintiffs cannot describe themselves in the suit as trustees of this centre since they lack capacity to sue in such a manner. They have not shown that they are registered trustees. They have not put forth a certificate of incorporation of the “Trust”. Accordingly as per section 3 (1) of the Trustees (Perpetual Succession)Act (Cap 164), there is no body corporate known as Gentiana Self-Help Centre to transact/carry out the various purposes set out in the “trust”. And in the event that the trust was registered at the land registry, it was only a document evidencing certain land transactions, not that they were valid.
The plaintiff’s position was in essence what was stated in the grounds of opposition, albeit with a little more elaboration in the submission: that the defendant had taken out and participated in proceedings in the cause so much so that he cannot now disown the jurisdiction of the court; the plaintiffs have been clearly identified by their names and are litigating the interest of beneficiaries as per Order 31 Civil Procedure Rules. By the trust deed annexed by the applicant the plaintiffs were therein shown as trustees. They had legal capacity to sue. The court should proceed to do justice in the matter and according to the plaint filed – not by originating summons as claimed by the applicant. No technical objection need be raised in litigation on the ground of want of form.
Essentially arguments for and against this application centered round existence or non-existence of a trust; capacity to sue and whether the proceedings should have been instituted by way of plaint or originating summons. Then of other aspects attending these main ones. The parties referred to the Trustee Act (Cap. 1676), the Trustees (Perpetual Succession) Act (Cap. 164) and Orders 31, 37 of the Civil Procedure Rules.
Mindful of the prayers in the chamber summons, it may be prudent to acquaint ourselves with the pleadings, specifically the plaint itself first.
A chamber summons of the 3.12.07 was filed seeking injunction orders as stated in the plaint. It was therein disclosed that the centre had a bank account at Kawangare, and a primary school standing on plot number DAGORETTI/WAITHAKA/1460. Annexed to the supporting affidavit were inter alia, a certificate of registration of Gentiana Self-Help Centre issued by the Ministry of Gender, Sports and Social Services dated 25.5.04. Also annexed was a title deed to Plot No. 1460 bearing the names of Eric Asiligwa (1st plaintiff) Richard Salat – (2nd plaintiff) with the defendant – all styled the “registered trustees” of Gentiana. The plaint has the 3rd plaintiff, one Agrey Muhadi Arap Sawe who is not in the title deed, but described in the plaint as one of the registered trustees. However, the 3rd plaintiff, Aggrey Muhadi appears on the face of the Trust Deed lodged with the Registrar of Documents at the lands registry on 27.9.07 (ELA 4). Two things observed as at this point are that, first the date stamp of 27.9.07 on the face of the deed, at the lands office appears to have a line across it. No party has told the court the meaning of it or if the lodging of the trust Deed was cancelled. Quite probably the latter. But then there are stamps to collect duty. And, secondly the defendant does not appear to have signed that deed. Seeing and noting the signatures of the other 3 duly witnessed, there appears to be none by the defendant or any witness to it. However, on the last page of the Deed is a date of 19.10.07 at 11.30 hrs when the Registrar of Documents one J. W. Kamuyu entertained the deed. In clause 1 of this deed it is stated, inter alia,
It has wide ranging objects including capacity – building in the community to enable (them) to manage projects; to conduct advocacy programmes; to promote environmental conservation programmes etc. The centre has a common seal wef 6.9.05, vesting the property in the trustees. Then the deed went on to set out other matters eg acquiring additional properties, investment, purchase of real property, powers to borrow up to dissolution of the trust. Nothing all through, touched on resolution of any disputes arising among the trustees inter se. And that appears to be the basis of this suit – squabbling amount the trustees.
They claim that once they filed a trust deed with the Registrar of Documents. That is all. That cannot be, despite lodging that it is. It says clearly that Gentiana is neither a society nor an incorporated company.
As noted above there was reference to Trustee Act Cap. 167). But this Act deals with estates of deceased persons and not registered trustees handling day today affairs of an entity concerning itself with activities in the society. The plaintiffs claimed that the defendant was trying to sideline them against their constitution and he was interfering in their objects including running a primary school. Then the trust deed which the court finds was lodged at the registry of documents, set out the objects the trust is to perform among communities (see above). So the court concludes that Gentiana Self-Help Centre, as a trust must fall under the Trustees (Perpetual Succession) Act (Cap. 164). It has been set up to promote activities in society that run for ever and ever. And under this Act its constitution is the set of rules, regulations, terms and documents relating to the objects of the trust and regulating the affairs thereof and the appointment of trustees and other officers thereof.
“3.(1) The trustees who have been appointed by anybody or association of persons established for any religious, educational, literary, scientic, social athletic or charitable purpose, may apply to the Minister in the manner provided in this Act for a certificate of incorporation of the trustees as a corporate body.”
All said and done there is no evidence placed before this court, that by applying using Form A (Schedule to Cap. 164) the Registrar of Documents did issue a certificate of incorporation to Gentiana to become a corporate body with registered trustees. Accordingly no such a body exists and the plaintiffS cannot sue on its behalf as the registered trustees. Invoking Order 31, 37 of Civil Procedure Rules is thus beside the point.
In sum Gentiana Self-Help Centre is not a trust in terms of Cap 164. It is not a corporate body. It cannot sue and nobody can sue on its behalf as its registered trustees. The suit herein is incompetent and misconceived. It is struck out with costs.
However what appears to be is that the so-called trustees are squabbling among themselves for this or other reason – usually insincere or selfish in such situations. They formed that entity on trust. It appears the trust is wearing fast to the detriment of the objects intended or programmes undertaken and therefore to the detriment of the intended beneficiaries. In that regard court cases are not the most prudent way to settle such disputes. The parties would do well to consider the course of mediation reconciliation or arbitration. The sooner that path is taken the better. And to begin with even as this suit is struck out, each party will bear its own costs.
J. W. MWERA
JUDGE