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ELCStruck OutNot stated in judgment· [2020] KEELC 3886 (KLR)

Methodist Church in Kenya v Zachary Ombongi & 4 others [2020] KEELC 3886 (KLR)

Environment and Land Court
24 January 2020
JOJ.M ONYANGO
518 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisii determined a preliminary objection filed on 9 June 2017 by the defendants, who contended that the plaintiff lacked locus standi and that the suit was a non-starter deserving to be struck out. The court canvassed the objection on written submissions and framed a single issue: whether the plaintiff had locus standi to institute the suit. Applying the classic test in Mukisa Biscuit Company Ltd v West End Distributors Limited, the court confirmed that a preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and held that locus standi satisfied that test. On the merits of the objection, the court found it common ground that the plaintiff was not a juristic person. Relying on section 3 of the Societies Act Cap 108 and Nambuye J's decision in Living Water International v City Council, the court held that a religious society has no legal capacity to sue or be sued, that both the suit and any interim application by such a body are a nullity, and that the defect could not be cured by amendment. The court struck out the plaintiff's suit in its entirety but expressly left the plaintiff at liberty to institute a fresh suit against the proper defendants, and awarded the defendants the costs of both the preliminary objection and the suit.

Key legal issues

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01

Whether the plaintiff has locus standi to institute the suit

Holding

The plaintiff, not being a juristic person, lacks locus standi; the suit is a nullity and is struck out in its entirety.

Reasoning

The court found it common ground that the plaintiff is not a juristic person. Relying on section 3 of the Societies Act Cap 108 and Living Water International v City Council, the court held that a religious society has no legal capacity to sue or be sued. The defect could not be cured by amendment, so the entire suit was a nullity fit for striking out, though the plaintiff may file a fresh suit against the proper defendants.

p. 1
02

Whether the objection qualified as a proper preliminary objection

Holding

Yes - locus standi is a pure point of law falling within the Mukisa Biscuit principles.

Reasoning

Applying Mukisa Biscuit Company Ltd v West End Distributors Ltd, the court noted that a preliminary objection must consist of a pure point of law argued on the assumption that all facts pleaded by the other side are correct. Since locus standi requires no ascertainment of facts or exercise of judicial discretion, the defendants' objection properly fell within those principles.

p. 2

Legal principles established

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  • A preliminary objection must raise a pure point of law on the assumption that all facts pleaded by the other side are correct; it cannot be raised if any fact has to be ascertained.
  • An unincorporated religious society registered under the Societies Act has no legal capacity to sue or be sued, and proceedings instituted by it are a nullity.
  • Lack of legal capacity to sue cannot be cured by amendment.

Court orders

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  1. 1.The plaintiff's suit is struck out in its entirety
  2. 2.Liberty to the plaintiff to institute a new suit against the proper defendants
  3. 3.The defendants shall have the costs of the Preliminary Objection and the suit

Authorities

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Legislation

  • Societies ActSection 3

Cases cited (2)

  • Mukisa Biscuit Company Ltd v West End Distributors Limited
    (1969) E.A 696
  • Living Water International v City Council
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (provision not stated in judgment)

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, "Methodist Church in Kenya v Zachary Ombongi & 4 others [2020] KEELC 3886 (KLR)", Case Analysis (2020). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3886/eng@2020-01-24

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