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ELCDismissedNot stated in the judgment as provided· [2018] KEELC 4286 (KLR)

Ndaragwa Jua Kali Association v Attorney General & 14 others [2018] KEELC 4286 (KLR)

Environment and Land Court
21 February 2018
LWL N Waithaka
3,109 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a registered society's land case because societies cannot sue in their own name—only through trustees or officials.

What this practically means

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Executive summary

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The petitioner, a registered society of jua kali artisans in Ndaragwa, Nyandarua County, petitioned the Environment and Land Court at Nyeri claiming that its members are the beneficial owners of LR No.28352, allocated by the Government of Kenya for their use. It alleged that the 2nd to 13th respondents had trespassed onto four acres, and that the 1st, 14th and 15th respondents had failed to protect the property. It sought declarations that the land was unavailable to private developers and that the 2nd to 13th respondents were trespassers, an order of eviction, and costs. The 2nd to 13th respondents filed a preliminary objection contending that the petitioner had no locus standi because the land belongs to the Government of Kenya, that no cause of action was disclosed, and that a constitutional court could not grant the prayers sought. The court framed four issues, starting with locus standi. It held that although the land is registered in the Government's name, the petitioner's members are undisputed beneficial owners with sufficient interest to litigate. However, following a consistent line of persuasive authority including Football Kenya Federation, Kipsiwo Community Self Help Group and Bridge Hotel, the court held that a registered society is an unincorporated entity without legal personality and cannot sue or be sued in its own name; only its officials or registered trustees can sue on its behalf. The suit having been instituted in the society's own name was bad in law and was dismissed. Because the petitioner lacked legal personality, the court awarded no costs. Judgment was delivered by L N Waithaka J on 21st February 2018 at Nyeri.

Key legal issues

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01

Whether the petitioner, a registered society, has locus standi to institute the petition

Holding

The members have a beneficial interest sufficient to ground a claim, but the society itself, being unincorporated, has no capacity to sue in its own name

Reasoning

The court accepted that the suit property belongs to the Government of Kenya but that the petitioner's members are undisputed beneficial owners, giving them sufficient interest. However, following consistent persuasive authority, a registered society is an unincorporated entity with no legal personality and cannot sue in its own name; only its officials or trustees can sue on its behalf. The petition having been filed in the society's own name was bad in law.

p. 4
02

Whether the petition meets the threshold of a preliminary objection under Mukisa Biscuit

Holding

The court disposed of the matter on the capacity/locus point, finding the suit bad in law

Reasoning

The court framed the Mukisa Biscuit threshold and identified locus standi as the sole threshold issue. Rather than determining jurisdiction or striking out separately, it held the suit, instituted in the name of an unincorporated society, to be bad in law and dismissed it.

p. 3

Legal principles established

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  • A registered society is an unincorporated entity without legal personality and cannot sue or be sued in its own name; it must sue through its officials or registered trustees

Court orders

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  1. 1.The suit as instituted in the name of the society is found to be bad in law and is dismissed
  2. 2.No costs awarded - the court awarded no costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 22, 258, 260
  • Environment and Land Court ActNot specified (referred to as Environment and Land Court Act, 2011)
  • Societies ActCap 108

Cases cited (14)

  • Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd
    (1969) E.A 696
  • Uhuru Muigai Kenyatta vs. Nairobi Star Publications Ltd
    (2013) eKLR
  • Mumo Matemu v. Trusted Society of Human Rights Alliance & 5 others
    (2013) eKLR
  • Football Kenya Federation v. Kenyan Premier League Ltd & 4 others
    (2015) eKLR
  • Kipsiwo Community Self Help Group v. Attorney General & 6 others
    (2013) eKLR
  • DI Koisagat Tea Estate Ltd v. Eritrea Orthodox Tewhdo Church Ltd
    (2015) eKLR
  • Bridge Hotel Ltd v. Winfred Mutiso Lai v. Jesus Celebration Centre
    (2016) eKLR
  • African Orthodox Church of Kenya versus Rev Charles Omuroka and Lagos Ministry for Orthodox Renewal
    (2014) eKLR
  • Matinyani Women Development Group vs Group Four Security Limited
    (2005) eKLR
  • Simu Vendors Association vs the Town Clerks City Council of Nairobi & Another
    (2005) eKLR
  • Eritrea Orthodox Church vs Wariwax Generation Limited
    (2007) eKLR
  • Living Water Church International vs City Council Nairobi
    (2008) eKLR
  • Kirinyaga United Bar Owners Organization vs County Secretary Kirinyaga County Government & 6 others
    {2014} EKLR
  • Kituo Cha Sheria vs John Ndirangu Kariuki & Another
Jurisdiction invoked
Constitution of Kenya, 2010 (Articles 22, 258 and 260); Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Ndaragwa Jua Kali Association v Attorney General & 14 others [2018] KEELC 4286 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4286/eng@2018-02-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.