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ELCDismissedNot stated in the extract· [2023] KEELC 582 (KLR)

Registered Trustees Gospel of God Church International v Mborothi & 7 others (Environment & Land Case 114 of 2011) [2023] KEELC 582 (KLR)

Environment and Land Court
8 February 2023
2,923 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court (C K Nzili, ELC Judge, delivered February 8, 2023) on an application dated October 3, 2022 by the proposed 3rd defendant, Kenneth Mutembei Mugambi, holding a limited grant ad litem for the deceased 3rd defendant who died on August 25, 2020. He sought leave to substitute the deceased out of time after the suit abated, and also asked the court to declare that the plaintiff and 6th defendant lacked locus standi as unlawful societies existing in breach of the Societies Act (Cap 108). The plaintiff opposed through a preliminary objection, arguing the suit had abated, no live suit existed against the deceased, and the issues were matters for the full hearing. The court reviewed Order 24 of the Civil Procedure Rules and authorities including Rebecca Mijide Mungole, Said Sweilean, Beatrice Wakariko Ngumba, Karl Wehner Claasen and George M Muchai. It held that the deceased 3rd defendant had been sued in a personal capacity on allegations of fraud and inaction; the cause of action was in personam and did not survive him, so no benefit would accrue to his estate from continuing the defence. No sufficient cause was shown for the inordinate delay, and the applicant failed to make the three sequential prayers required under Order 24. On the locus standi challenge to the plaintiff and 6th defendant, the court held that disputes over society registration fall to the Registrar of Societies or judicial review, and allegations of fraud and passing off exceed the ELC's mandate under Article 165(2)(b) and Section 13 of the ELC Act. The application was dismissed with costs.

Key legal issues

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01

Whether the cause of action against the deceased 3rd defendant survived his death

Holding

No; he was sued in a personal capacity on allegations of fraud and inaction, so the claim died with him

Reasoning

The plaint described the 3rd defendant as a former member of the Gospel of God Church and alleged personal fraud. His witness statement showed even the trusteeship appointment had hit the Limitation Act. Nothing in the pleadings described him as a trustee, and no benefit would accrue to his estate from continuing the defence, so substitution would improperly expose the estate.

p. 5
02

Whether sufficient cause was shown for reviving the abated suit

Holding

No; the affidavit gave no sufficient cause for the inordinate delay until abatement, and the required sequential prayers under Order 24 were not made

Reasoning

Following Rebecca Mijide Mungole, an omnibus application is permissible only if it contains the three prayers: extension of time, joinder of the legal representative, and revival on sufficient cause. The applicant conceded an earlier application and gave no tangible explanation, unlike litigants in Beatrice Wakariko Ngumba who slept on their rights.

p. 5
03

Whether the plaintiff and 6th defendant are unlawful societies lacking locus standi

Holding

The court declined to determine this; the applicant's remedy lies with the Registrar of Societies or in judicial review, and fraud allegations exceed the ELC's mandate

Reasoning

The Registrar of Societies has statutory mandate under the Societies Act over society registration disputes. Further, allegations of fraud, passing off and false pretences fall outside the court's jurisdiction under Article 165(2)(b) read with Section 13 of the ELC Act, which is confined to land and environment disputes.

p. 5

Legal principles established

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  • A suit against a defendant sued in a personal capacity does not survive his death; no benefit accrues to his estate from continuing the defence
  • Revival of an abated suit requires extension of time first, joinder of the legal representative second, and demonstration of sufficient cause under Order 24 rule 7
  • Challenges to registration or status of societies lie with the Registrar of Societies or judicial review, not the ELC

Court orders

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  1. 1.The application dated October 3, 2022 is dismissed
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • Societies ActCap 108; sections 11 & 13
  • Civil Procedure RulesOrder 24 rules 1, 3(2), 4, 7(2)
  • Oaths and Statutory Declarations Actsection 5 (Cap 15)
  • Law of Succession Actsection 82
  • Constitution of KenyaArticles 50, 159(2)(d), 165(2)(b)
  • Environment and Land Court Actsection 13
  • Law of Limitations Actreferred to generally
  • Appellate Jurisdiction Actsections 3A and 3B

Cases cited (14)

  • Sweilen Gheithan Saanum vs Commissioner of Lands
    (2015) eKLR
  • Kenya Farmers' Cooperative Union Ltd vs Charles Murgor t/a Kitabei Coffee Estate
  • Sarah Gathoni Muriruri and another vs Wanjiku Kiguru
    (2019) eKLR
  • Aggrey Swaka Waswa vs Patrick Omonge Khasumba and others
    (2020) eKLR
  • Muriithi Ngwenya vs Gikonyo Macharia Mwangi & others
    (2018) eKLR
  • Timoi Farms and Estate Ltd vs Kipngeno arap Ngeny & another
    (2022) eKLR
  • Mbaya Nzulwa vs KPLC
    (2018) eKLR
  • Karl Wehner Claasen vs Commissioner of Lands and 4 others
    (2019) eKLR
  • Beatrice Wakariko Ngumba vs Milicent Wangechi
    (2018) eKLR
  • Rebecca Mijide Mungole & another vs KPLC & 2 others
    (2017) eKLR
  • Charles Wanjohi Wathuku vs Githinji Ngure & another
    (2016) eKLR
  • John Mutai Mwangi & 26 others vs Mwenja Ngure & 4 others
    (2016) eKLR
  • George M Muchai vs Francis Atwoli & 17 others
    (2016) eKLR
  • Republic vs Registrar of Societies
    (2008) eKLR
Jurisdiction invoked
Article 165(2)(b) of the Constitution as read with Section 13 of the Environment and Land Court Act

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, "Registered Trustees Gospel of God Church International v Mborothi & 7 others (Environment & Land Case 114 of 2011) [2023] KEELC 582 (KLR)", Case Analysis (2023). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/582/eng@2023-02-08

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