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ELCDismissedPetition dated May 13, 2019· [2023] KEELC 190 (KLR)

Malindi Rights Forum (MRF) & another v National Land Commission & 10 others; County Government of Kilifi & another (Interested Parties) (Environment & Land Petition 11 of 2020) [2023] KEELC 190 (KLR)

Environment and Land Court of Kenya
25 January 2023
NMN.A. Matheka
1,287 words in judgment
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The bottom line

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Kenya's Environment and Land Court confirmed that unincorporated associations can sue on behalf of their members, striking down an attempt to dismiss a 3,000-member group's petition.

What this practically means

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Executive summary

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This first-instance ruling by N.A. Matheka J, delivered at Mombasa on January 25, 2023, determines a preliminary objection dated October 12, 2022 raised by the 6th respondent against a petition dated May 13, 2019. The 6th respondent argued that the petitioners, as named, had no legal capacity to sue, not being persons in law, so the petition should be struck out with costs as misconceived and an abuse of process. The petitioners responded that they are an organisation of 3000 members who had entrusted their leaders to file suit on the members' behalf; the 1st respondent agreed with that position. The court examined the concept of locus standi, drawing on Black's Law Dictionary and the definitions in Alfred Njau v City Council of Nairobi and Law Society of Kenya v Commissioner of Lands, and applied the Mukisa Biscuit formulation of what constitutes a proper preliminary objection. It noted, per Mumo Matemu, that locus standi is a point of law touching jurisdiction to be resolved at the earliest opportunity. The court then held that articles 22, 258 and 260 of the Constitution of Kenya, 2010 grant standing to any person, defined to include an association or body of persons whether incorporated or unincorporated, acting on behalf of members or in the public interest. The preliminary objection was therefore found unmerited and dismissed with costs. The petition itself remains to be heard on the merits; the court made no other orders.

Key legal issues

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01

Whether the unincorporated petitioners' association has locus standi to institute the petition

Holding

The preliminary objection on capacity fails: articles 22, 258 and 260 of the Constitution confer standing on associations, whether incorporated or unincorporated, acting on behalf of members or in the public interest

Reasoning

The court traced the definition of locus standi through Black's Law Dictionary, Alfred Njau, and Law Society of Kenya v Commissioner of Lands, and applied the Mukisa Biscuit test for preliminary objections. Relying on Mumo Matemu, it held that the 2010 Constitution liberalised standing: article 260 defines 'person' to include unincorporated associations, and articles 22 and 258 permit associations acting in the interest of members to sue. The objection was therefore dismissed.

p. 4

Legal principles established

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  • An association, whether incorporated or unincorporated, may institute legal proceedings on behalf of its members under article 258 of the Constitution of Kenya, 2010
  • An objection on locus standi is a point of law touching on the jurisdiction of the court and should be resolved at the earliest opportunity

Court orders

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  1. 1.The preliminary objection dated October 12, 2022 is dismissed with costs to the petitioners

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 260
  • Constitution of Kenya, 2010Article 22
  • Constitution of Kenya, 2010Article 258
  • Constitution of Kenya, 2010Article 22(3) - Constitution of Kenya (Protection of Rights and Freedoms) Practice and Procedure Rules, 2013 (Mutunga Rules, Legal Notice No 117 of June 28, 2013)

Cases cited (5)

  • Alfred Njau and others v City Council of Nairobi
    (1982) KAR 229
  • Law Society of Kenya v Commissioner of Lands & others
    Nakuru High Court Civil Case No 464 of 2000
  • Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd
    (1969) EA 696
  • Mumo Matemu v Trusted Society of Human Rights Alliance & 5 others
    (2014) eKLR; (2013) eKLR
  • Mary Wambui Munene v Peter Gichuki Kingara and Six Others
    Sup Ct Petition No 7 of 2013; [2014] eKLR
Jurisdiction invoked
Articles 22, 258 and 260 of the Constitution of Kenya, 2010 (right of standing to enforce the Bill of Rights and the Constitution)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Malindi Rights Forum (MRF) & another v National Land Commission & 10 others; County Government of Kilifi & another (Interested Parties) (Environment & Land Petition 11 of 2020) [2023] KEELC 190 (KLR)", Case Analysis (2023). Petition dated May 13, 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/190/eng@2023-01-25

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