Francis Njuguna v Secretary, Anglican Church of Kenya & another [2021] KEELC 3999 (KLR)
The bottom line
#Kenya's Environment and Land Court struck out a lawsuit against the Anglican Church Eldoret because the church was sued in the wrong name instead of its trustees.
What this practically means
#Executive summary
#Key legal issues
#Capacity of the 2nd Defendant, a society registered under the Societies Act, to be sued
The 2nd Defendant is without capacity to be sued in its own name
The Plaint described the 2nd Defendant as a church registered under the Societies Act. Relying on Section 3 of the Act and superior court decisions cited by defence counsel, the court found that such religious entities can only sue or be sued through their elected officials or trustees per their constitutions.
Capacity of the 1st Defendant, said to be an employee, to be sued on behalf of the 2nd Defendant
The 1st Defendant lacks capacity as nothing in the pleadings shows he is an elected official or trustee
There was nothing in the pleadings to show the 1st Defendant was an elected official or trustee of the 2nd Defendant. The assertion in the Defendants' submissions that he was an employee was not challenged or rebutted by the Plaintiff.
Whether a preliminary objection can result in striking out a suit at the interlocutory stage
Preliminary objections may be raised at any stage; where defendants lack capacity, the suit should not be allowed to remain pending
The Plaintiff argued final orders cannot issue at interlocutory stage, but the court held the law permits preliminary objections at any stage and that obligations under Article 159(2)(b) and (d), Sections 1A, 1B and 3A of the Civil Procedure Act and Section 19 of the ELC Act require expeditious disposal without wasting costs.
Legal principles established
#- Religious entities registered under the Societies Act lack capacity to sue or be sued in their own names and may only do so through their elected officials or trustees in accordance with their constitution.
- A suit against parties without capacity to be sued is an abuse of the court process.
Court orders
#- 1.The Defendants' preliminary objection dated the 23rd April, 2018 is hereby upheld.
- 2.The Plaintiff's suit commenced through the Plaint dated the 16th March, 2018 is hereby struck out with costs.
- 3.The Ruling is to be transmitted digitally by the Deputy Registrar to the Counsel on record through their e-mail addresses.
- Jurisdiction invoked
- Environment and Land Court Act No. 19 of 2011, Section 19; Article 159(2)(b) and (d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Francis Njuguna v Secretary, Anglican Church of Kenya & another [2021] KEELC 3999 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3999/eng@2021-03-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.