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ELCDismissedNot stated in judgment (suit commenced by Plaint dated 22nd April, 2013; amended Plaint dated 19th March, 2020)· [2022] KEELC 2329 (KLR)

Kenyaga v Onganyo & 5 others (Sued as trustees of Barina Squatters Self Help Group) (Environment & Land Case 313 of 2013) [2022] KEELC 2329 (KLR)

Environment and Land Court
12 May 2022
3,180 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenyan courts ruled a self-help group cannot defend a land suit in its own name because it lacks legal status, striking it out of the case entirely.

What this practically means

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Executive summary

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This ruling by L. A. Omollo, J of the Environment and Land Court at Nakuru, delivered on 12th May 2022, determines the 6th Defendant/Applicant's Notice of Motion dated 7th October 2021 seeking leave to file its memorandum of appearance and statement of defence out of time and to have the defence deemed duly filed. The suit, commenced by plaint in April 2013, concerns plot No. 329 (now plot No. 252) of approximately 6 acres, with the plaintiff seeking a permanent injunction and a declaration of ownership with an order for issuance of a title deed. The 6th Defendant was joined by amended plaint filed on 3rd March 2021. The 2nd and 3rd Defendants filed a preliminary objection contending that the 6th Defendant is not a legal person capable of suing or being sued in its own name. The court framed three issues: whether the preliminary objection was merited; whether leave to defend out of time should issue; and costs. Examining the certificate annexed to the supporting affidavit, the court found the 6th Defendant to be a self-help group/project registered with the Ministry of Labour, Social Security and Services in 1999 - an unincorporated entity without legal persona. Applying Mukhisa Biscuit, Kipsiwo, Kituo cha Sheria and Football Kenya Federation, the court held that a self-help group lacks capacity to sue or be sued and that proper parties are a precondition to jurisdiction. The preliminary objection was upheld, the 6th Defendant was struck out of the suit, the application was dismissed, with no order as to costs. The court noted the Applicant must pursue appropriate legal avenues to participate in the suit.

Key legal issues

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01

Whether the preliminary objection that the 6th Defendant lacks capacity to sue and be sued is merited

Holding

The preliminary objection is merited. The 6th Defendant is a self-help group registered under the Ministry of Labour, Social Security and Services, an unincorporated entity with no legal persona, and was therefore improperly joined to the suit.

Reasoning

Relying on Mukhisa Biscuit, the court found the capacity question a pure point of law. The certificate of registration annexed showed the 6th Defendant was a self-help group/project, not a body incorporated under the Trustees (Perpetual Succession) Act. Following Kipsiwo, Kituo cha Sheria and Football Kenya Federation, unincorporated entities cannot sue or be sued in their own name and proper parties are a precondition to jurisdiction.

p. 7
02

Whether the 6th Defendant should be granted leave to file its defence out of time

Holding

The application for leave was dismissed because the Applicant lacks legal capacity; it must find appropriate and legal avenues to participate in the suit.

Reasoning

The court acknowledged the 6th Defendant's interest in the suit and that it was joined by amendment, but held that an entity without legal capacity cannot sustain the application. It noted numerous legal options (e.g. suit through registered officials or a representative action) remain available to it.

p. 7

Legal principles established

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  • A self-help group registered under the Ministry responsible for social services is an unincorporated entity without legal capacity to sue or be sued in its own name
  • The presence of proper parties is a prerequisite to the exercise of jurisdiction; proceedings conducted without proper parties are a nullity

Court orders

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  1. 1.The 6th Defendant is struck out of this suit
  2. 2.The application dated 7th October, 2021 is dismissed
  3. 3.No order as to costs
  4. 4.It is so ordered

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A and 63(e)
  • Civil Procedure Rules, 2010Order 51
  • Constitution of Kenya, 2010Article 159(2)(b)
  • Trustees (Perpetual Succession) Act, Cap. 164 Laws of KenyaNot specified

Cases cited (9)

  • Kipsiwo Community Self Help Group Vs Attorney General And 6 Others
    [2013] eKLR
  • Kituo cha Sheria vs John Ndirangu Kariuki & Another
    [2013] eKLR
  • Football Kenya Federation Vs Kenya Premier League Limited & 4 Others
    [2015] eKLR
  • Nyeri Quarry Transporters Self Help Group Vs Municipal Council of Nyeri & Town Clerk Municipal Council of Nyeri
    [2014] eKLR
  • Mukhisa Biscuit Manufacturing Co. Ltd. vs West End Distributors Limited
    (1969) EA 696
  • The Fort Hall Bakery Supply Co. Vs Fredrick Muigai Wangoe
    [1959] E.A. 474
  • Banque Internationale de Commerce de Petrograd Vs Goukassaow
    [1923] 2 KB 682
  • Appex International ltd & Anglo Leasing & Finance International ltd Vs Kenya Anti-Corruption Commission
    [2012] eKLR
  • Goodwill & Trust Investments Ltd & Another Vs Will & Bush Ltd
Jurisdiction invoked
Sections 1A, 3A and 63(e) of the Civil Procedure Act, Order 51 of the Civil Procedure Rules, 2010 and Article 159(2)(b) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Kenyaga v Onganyo & 5 others (Sued as trustees of Barina Squatters Self Help Group) (Environment & Land Case 313 of 2013) [2022] KEELC 2329 (KLR)", Case Analysis (2022). Not stated in judgment (suit commenced by Plaint dated 22nd April, 2013; amended Plaint dated 19th March, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2329/eng@2022-05-12

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