Republic v Permanent Secretary Ministry of Environment & Natural Resources & another Ex parte Lembus-Narasha Community Forest Association & 2 others [2021] KEELC 1609 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Capacity of a society registered under the Societies Act to institute judicial review proceedings
The 1st ex parte applicant could not sue in its own name, but the 2nd and 3rd ex parte applicants individually had capacity, so the proceedings were competently instituted
The court applied the settled rule that a society registered under the Societies Act must sue through its officials per its constitution, with the only exception being constitutional petitions under Article 22, which this judicial review was not. However, because Henry Ruto (2nd applicant) and Samuel Kipsang (3rd applicant) were individually named - one as chairman and the other as a farmer within the forest community - they could competently originate the proceedings alone, curing any capacity defect.
Whether judicial review was the appropriate forum for the dispute over the maize cultivation ban
No - the court lacked jurisdiction because the dispute concerned private contractual obligations and raised contested factual issues
The relationship between the parties rested on the agreement dated 21st April 2016, which contained a dispute resolution mechanism (negotiation, appeal to the KFS board, referral to the National Environment Tribunal) under clause 14. The dispute involved private obligations, not public administrative decision-making. Judicial review examines only process, not merits or contested facts. Consequently the judicial review court had no jurisdiction, and a suit filed in a court devoid of jurisdiction is dead on arrival.
Legal principles established
#- A society registered under the Societies Act cannot sue in its own name but must do so through its officials in accordance with its constitution, save in constitutional petitions under Article 22 of the Constitution
- Judicial review deals only with the decision-making process, not the merits of a dispute; where the proceedings seek determination of contested facts and private contractual obligations, the court lacks jurisdiction and parties should file ordinary civil suits
- A suit filed in a court devoid of jurisdiction is dead on arrival and cannot be remedied
Court orders
#- 1.Notice of Motion dated 2nd March 2021 struck out
- 2.Each party to bear own costs
- Jurisdiction invoked
- Judicial review jurisdiction (order of certiorari) under the Fair Administrative Action framework; matter commenced ex parte by leave granted 18th February 2021
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Permanent Secretary Ministry of Environment & Natural Resources & another Ex parte Lembus-Narasha Community Forest Association & 2 others [2021] KEELC 1609 (KLR)", Case Analysis (2021). Judicial Review Application (Notice of Motion dated 2nd March 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1609/eng@2021-10-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.