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ELCOtherNot stated in the extract (Notice of Motion dated February 7, 2022 in the suit)· [2022] KEELC 3961 (KLR)

The Executive Committee Of Ngei Estate Phase II v Waweru (Environment and Land Case Civil Suit E013 of 2020) [2022] KEELC 3961 (KLR)

Environment and Land Court
28 July 2022
4,197 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court struck out a residents association's land suit because it was not a legally registered entity capable of suing.

What this practically means

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Executive summary

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The Defendant, Dr Hosea W Waweru, registered owner of L R No Nairobi/Block 72/924, moved the court by Notice of Motion dated February 7, 2022 seeking striking out of the Plaintiff's Plaint dated July 13, 2020 and two associated applications. He contended that the Plaintiff, Ngei II Residents Association, was not a registered entity, was an amorphous organisation incapable of suing, and had no proprietary interest in the suit property. The Plaintiff, through a replying affidavit of its Vice Chairperson Noella Mutanda, maintained it was a duly registered society with capacity to sue, and alternatively that any defect was curable by amendment. The court framed three issues: registration status, whether an unincorporated society can sue in its own name, and whether the defect was amendable. On the first, invoking Section 112 of the Evidence Act, the court held the burden of proving registration lay on the Plaintiff, whose certificate of registration was in the distinct name of Ngei Phase Two Lang'ata Residents Association; the Plaintiff was therefore a non-existent entity and the suit void ab initio. On the second, the court held that unincorporated societies can only sue through registered trustees or named officials, relying on Peter Taracha, Kiserian Isinya and Free Pentecostal Fellowship. On the third, applying Jai Jai Ram Manohar Lal, the court held a suit by a non-existent body is a nullity incapable of amendment. The application was allowed, the Plaint struck out, the injunction of September 16, 2021 discharged, and costs awarded to the Defendant.

Key legal issues

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01

Whether the Plaintiff was shown to be a registered society or association

Holding

The Plaintiff failed to prove registration; the certificate produced was in the name of a distinct entity, Ngei Phase Two Lang'ata Residents Association, so the Plaintiff is an amorphous, non-existent entity unknown to law.

Reasoning

Once the Plaintiff's registration status was impeached, the burden lay on the Plaintiff under Section 112 of the Evidence Act, since registration facts were specially within its knowledge. The only certificate exhibited was issued on February 6, 2001 to Ngei Phase Two Lang'ata Residents Association, a separate and distinct name. Any purported change of name required minutes and application to the Registrar of Societies, which was not done. The suit filed by an executive committee of a non-existent body was therefore void ab initio.

p. 5
02

Whether an unincorporated society or association can sue in its own name

Holding

No. An unincorporated society or association can only sue through its registered trustees or officials, whose personal names must be used; a suit in the name of an 'Executive Committee' is legally incompetent.

Reasoning

Societies registered under the Societies Act lack legal personality, unlike incorporated bodies such as companies, co-operative societies and political parties. The court relied on Peter Taracha v Holiness Church, John Ottenyo Amwayi v Rev George Abura, Kiserian Isinya Pipeline Road Resident Association v Jamii Bora Charitable Trust and Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank, all holding that the Societies Act contains no provision for suits by unincorporated societies in their own names and that lack of capacity renders proceedings a nullity.

p. 6
03

Whether the defect was curable by amendment

Holding

It was not. An amendment can cure misdescription of an existing party but cannot validate a suit commenced by a non-existent body, which is a nullity from inception.

Reasoning

Relying on the Supreme Court of India decision in Jai Jai Ram Manohar Lal v National Building Material, the court distinguished between a suit brought in the name of a non-existent person (a nullity) and a mere misdescription of existing persons (curable). The defect here concerned legal standing, a substantive issue going to the root of the matter and the court's jurisdiction, outside the saving reach of Article 159(2)(d) of the Constitution, the Oxygen Principle and Sections 1A and 1B of the Civil Procedure Act.

p. 8

Legal principles established

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  • A society or association which is not a body corporate cannot sue in its own name; it can only sue through its registered trustees or officials.
  • A suit filed by a non-existent person or body is a nullity that no amendment can cure.
  • Lack of legal capacity to sue is a substantive matter going to the root of the proceedings, not a curable technicality.

Court orders

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  1. 1.The Application dated February 7, 2022 be and is hereby allowed.
  2. 2.The Plaintiff/Respondent's suit vide Plaint dated July 13, 2020 be and is hereby struck out.
  3. 3.The Temporary Orders of Injunction issued vide Ruling rendered on September 16, 2021 be and are hereby Discharged.
  4. 4.Costs of the Suit and the Application dated February 7, 2022 be and are hereby awarded to the Defendant.

Authorities

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Legislation

  • Society Act (Societies Act), Chapter 108 Laws of KenyaSection 4
  • Evidence Act, Chapter 80 Laws of KenyaSection 112
  • Civil Procedure Act, Chapter 21 Laws of KenyaSections 1A and 1B
  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure RulesOrder 1 rule 8

Cases cited (8)

  • Macfoy vs United Africa Co Ltd
    [1961] 3 All E R 1169
  • Peter Taracha & Anor vs Holiness Church & Anor
    [2016] eKLR (HCA No 128 of 2013)
  • John Ottenyo Amwayi & others V Rev George Abura & others
    HCCC No 6339 of 1990
  • Kiserian Isinya Pipeline Road Resident Association & others v Jamii Bora Charitable Trust and Another
    Civil Appeal No. 307 of 2006
  • Free Pentecostal Fellowship in Kenya V Kenya Commercial Bank
    HCC No 5116 of 1992 (O.S)
  • Jai Jai Ram Manohar Lal vs National Building Material
    1969 AIR 1267, 1970 SCR (1) 22
  • Kituo Cha Sheria versus John Ndirangu Kariuki & another
    [2013] eKLR
  • A N Phakey Vs World Wide Agencies Ltd
    [1948] Vol XV EACA 1
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property L R No Nairobi/Block 72/924

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, "The Executive Committee Of Ngei Estate Phase II v Waweru (Environment and Land Case Civil Suit E013 of 2020) [2022] KEELC 3961 (KLR)", Case Analysis (2022). Not stated in the extract (Notice of Motion dated February 7, 2022 in the suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3961/eng@2022-07-28

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