The issue in this case is whether the claimant has locus standi to institute this suite against the

respondent for want of privity of contract.Locus standi signifies a right to be heard,but for a
person to be heard he must have sufficiency of interest to sue in court of law.
Under Rule 1 Order number 53,of civil procedure rules ,the applicant should show that he
has sufficient interest in the matter by establishing that he is affected by the decision or
action.The first point to be decided is whether the claimant has the necessary locus standi to file
and prosecute the suit since,one must have a sufficiency of interest to sustain his standing to sue
in a court of law. Article 22 of the Constitution of Kenya 2010 provides that every person has
the right to institute court proceeedings claiming that a right or fundamental freedom in the Bill
of Rights has been denied ,violated or infringed or is threatened. Order 1 rule 8 of the civil
procedure rules provides that one or more persons may be authorized on behalf of or for the
benefits of all persons interested which is not the case here,and dint to the provisions of Order 1
rule 12 that appearance of one or several plaintiff or defendants require written authority signed
by each of the numerous persons forming the group on who’s behalf representative suit was or is
to be instituted in the case may be which both legal requirements were not fulfilled by the
plaintiff.
Section 6(1) of the sale of Goods Act provides that a contract for the sale of any goods of the
value of two hundreds shillings or upwards shall not be enforceable by action unless the buyer
accepts part of the goods so sold ,and actually receives them or gives something in earnest to
bind the contract or in part payment or unless some note or memorandum in writing of the
contract is made and signed by the party to be charged or his agent in that behalf.In this case the
only sale agreement that is admissible is between Silko paints and Hamptons Hospital Limited as
the parties to the contract and not between the claimant Veronicah Omwembe and the respondent
Hamptons hospital,the purchase order also signifies this.
The common law doctrine dictates that only parties to a contract can sue and be sued on it “No
one may be entitled to or bound by the terms of a contract to which he is not an original
party”.In this case the applicant is not part of the contract thus is not bound by the terms of
contract and should not sue,since the contract is between Silko paints and Hamptons Hospital
Limited and not the respondent.
Section 3 of the Contract Act provides that ;
No suit shall be brought whereby to charge the defendant upon any special promise to answer
for the debt, default or miscarriages of another person unless the agreement upon which such
suit is brought, or some memorandum or note thereof, is in writing and signed by the party to
be charged therewith or some other person thereunto by him lawfully authorized.
No suit shall be brought whereby to charge any person upon or by reason of any representation
 or assurance made or given concerning or relating to the character, conduct, credit, ability, trade
or dealings of any other person, to the intent or purpose that such other person may obtain
credit, money or goods, unless such representation or assurance is made in writing, signed by
the party to be charged therewith.
No suit shall be brought upon a contract for the disposition of an interest in land unless ,the
contract upon which the suit is founded is in writing,signed by all the parties thereto and the
signature of each party signing has been attested by a witness who is present when a contract
was signed by such party.
The principle of common law states that parties to a contract cannot impose an obligation to a
third party ,meaning that third parties cannot seek to obtain judgement on a breach of contract
if they were not a party to that contract.
In the case of Tweddle V Atkinson where a son whose father ,Mr Tweddle had contracted with
his father inlaw ,William Guy ,that upon marrying his daughter ,the plaintiff will be given an
amount of money .Unfortunately both father and father in law passed and Tweddle sued his
estate to enforce the agreement,raising the question,could the claimant sue on a contract he was
not a party to.The court held that a promise cannot bring an action unless the consideration for
the promise moved from him,stating ,that no stranger to the consideration can take advantage
of contract ,although made for his benefit.The claimant was not a party to the agreement as he
had not provided consideration for it ,thus ,had no power to sue to enforce the contract.In this
case ,the claimant was not a party to the agreement and thus has no power to sue the
respondent.This case is authority as it establishes the common law principle of privity of
contract that a person who has not provided consideration for an agreement cannot sue to
enforce it as consideration must move from the person seeking to enforce the contract.
In the case of Dunlop Pneumatic Tyre Co. Ltd V Selfridge and Co.Ltd where the plaintiff
(Dunlop) sought to establish and enforce a resale price maintenance (RPM) scheme.The
plaintiff sold tyres to Dew and Co (a tyre dealer) which then sold to Selfridge on condition that
Selfridge would not sell below the list price,Selfridge failed to comply with the condition and
the plaintiff sued for breach of contract,raising the issue if Dunlop has the right to sue Selfridge
for non compliance to the contract and if Dunlop can sue Selfridge even though there is no
contract between them.
It was held that although the promise made by Selfridge to Dew had been made to the benefit of
Dunlop ,Dunlop was not entitled to enforce the contract against Selfridge because it was not a
party to the contract.This was similar to the case of Winterbottom V Wright where the court
held that the plaintiff could not sue for breach of contract against the defendant because the
plaintiff was not party to the contract.In Berswick V Berswick the court of Appeal ruled that a
person who was not a party to a contract had no independent standing to to sue to enforce it ,even
if the contract was clearly indicated for their benefit.
The test for locus standi is embodied in HC Misc Application No 58 of 1997-Hon Raila
Odinga V Hon Justice Abdul Majid Cockar and Republic V GBM Kariuki Misc Cr Appl
No 6 of 1994 which are authorities proposition that for a party to have locus standi he ought to
show that his own interest particularly has been prejudiced or about to be prejudiced. Order 1
rule 8 of the civil procedure rules provides that one or more persons may be authorized on behalf
of or for the benefits of all persons interested which is not the case here,and dint to the provisions
of Order 1 rule 12 that appearance of one or several plaintiff or defendants require written
authority signed by each of the numerous persons forming the group on who’s behalf
representative suit was or is to be instituted in the case may be which both legal requirements
were not fulfilled by the plaintiff.
I therefore find and hold that the claimant lacks the requisite locus standi to institute the suit.