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ELCOther· [2023] KEELC 120 (KLR)

Africa Christian Church & Schools Registered Trustees v Macharia & 2 others (Environment & Land Case 162 of 2017) [2023] KEELC 120 (KLR)

Environment and Land Court
20 January 2023
MNMwangi Njoroge
1,609 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled an unincorporated church society cannot sue in its own name, but let it amend its case instead of dismissing it.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (Mwangi Njoroge J) determined the 2nd defendant's preliminary objection dated September 16, 2019, canvassed by written submissions. The objection contended that the suit was incompetent and an abuse of process because the plaintiff, described as 'African Christian Church & Schools Registered Trustees', was a registered unincorporated society lacking legal personality to sue. Relying on Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd, the court held the objection raised a pure point of law on locus standi. Although the plaintiff relied on a certificate of exemption from registration under the Societies Rules 1968 and on section 3(3) of the Trustees (Perpetual Succession) Act, the court reasoned that it is only the appointed trustees who become a body corporate with capacity to sue and be sued, not the unincorporated society itself. Following Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank, the court held the plaintiff lacked capacity to institute proceedings in its own name and ought to have sued in the names of its trustees. However, the court declined to strike out the suit, treating the defect as curable: it ordered the plaintiff to amend the plaint within 30 days to include the registered trustees' individual names described as suing on behalf of the body, to serve the amended plaint within 7 days, and fixed the suit for mention on February 28, 2023 to ascertain compliance and for further directions. No costs order was made in the ruling.

Key legal issues

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01

Whether the plaintiff, alleged to be a registered unincorporated society, has legal personality and capacity to sue in its own name

Holding

The preliminary objection was merited; the plaintiff lacked capacity to sue in its own name and should have sued through its registered trustees

Reasoning

Applying Mukisa Biscuit, the objection raised a pure point of law on locus standi. The plaintiff held only a certificate of exemption from registration under the Societies Rules 1968 and was therefore unincorporated. Section 3(3) of the Trustees (Perpetual Succession) Act confers corporate status on appointed trustees, not on the unincorporated society itself, so the suit should have been instituted in the trustees' names.

p. 4
02

Whether the flaw is fatal to the suit

Holding

The flaw is curable; the court directed amendment rather than striking out

Reasoning

Although the preliminary objection succeeded, the court declined to strike out the suit, treating the misjoinder of the plaintiff's name as a curable defect and allowing 30 days for the plaint to be amended to name the registered trustees as suing on behalf of the body, with service within 7 days and a mention date for compliance.

p. 4

Legal principles established

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  • An unincorporated society cannot sue in its own name; under section 3(3) of the Trustees (Perpetual Succession) Act it is the appointed trustees who become a body corporate with capacity to sue and be sued
  • A preliminary objection challenging locus standi raises a pure point of law under the Mukisa Biscuit test
  • A defect in a plaint founded on lack of legal personality may be cured by amendment rather than striking out

Court orders

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  1. 1.The plaintiff shall within 30 days amend its plaint to include the registered trustees' individual names in the title and describe them as 'as suing on behalf' of the body named
  2. 2.The amended plaint shall be served on the other parties within 7 days of its filing
  3. 3.The suit shall be mentioned on February 28, 2023 to ascertain compliance and for further directions as to hearing

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 rule 8
  • Trustees (Perpetual Succession) ActChapter 164, section 3(3)
  • The Societies Rules1968 (certificate of exemption from registration)

Cases cited (6)

  • Trustees Kenya Redeemed Church & another v Samuel M'obiya & 5 others
    [2011]
  • Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank
    HCC No 4116 of 1992 (OS)
  • African Orthodox Church of Kenya v Rev Charles Omuroka & another
    [2014] eKLR
  • Gladys Pereruam v Betty Chepkorir
    [2020] eKLR
  • Trustees of the Agricultural Society of Kenya v James Gitonga
    [2017] eKLR
  • Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd
    1969 1EA 696
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (not expressly cited in the ruling)

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, "Africa Christian Church & Schools Registered Trustees v Macharia & 2 others (Environment & Land Case 162 of 2017) [2023] KEELC 120 (KLR)", Case Analysis (2023). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/120/eng@2023-01-20

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