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ELCDismissedEnvironment and Land Petition 15 of 2021· [2023] KEELC 18551 (KLR)

Taireni Association of Mijikenda v Chakama Ranching Limited & 7 others; National Land Commission & 2 others (Interested Parties)

Environment and Land Court
7 July 2023
3,230 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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A Kenyan court threw out a community land claim because the association filed it in its own name instead of through its officials.

What this practically means

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Executive summary

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The Taireni Association of Mijikenda, a society registered under the Societies Act, petitioned the Environment and Land Court at Malindi on behalf of communities claiming historical ownership of the Chakama Ranch. It sought declarations that the alienation of community land, the grant of LR No. 13472/1 to Chakama Ranching Limited in 1984/1985, and the subsequent adjudication were unconstitutional and unlawful, together with orders nullifying titles and adjudication records and injunctions restraining dealings with the land. The 1st Respondent challenged the petitioner's capacity, asserting it held valid title and that the petitioner had no demonstrable legal or beneficial interest. The court identified locus standi as the threshold issue, holding it must be resolved before the merits. Relying on Lloyd v Loaring, Seely v Schenck, and Kenyan authorities including Mavoko Land Development Company and Keekonyokie Farmers Cooperative Society, the court held that an unincorporated society cannot sue or be sued in its own name and must act through its officials. It further found the petitioner was not a 'person' under Article 260 and did not fall within Article 22. The petition was accordingly dismissed with costs, without reaching the substantive questions on the 1984 grant, the adjudication process, or the community land claims.

Key legal issues

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01

Whether an association registered under the Societies Act has capacity to institute a constitutional petition in its own name

Holding

It does not; being unincorporated, it lacks the corporate franchise to sue and must act through its officials or under Article 22(2)(d) as an association acting in the interest of its members, which the court found it had not established.

Reasoning

The court traced the common law rule from Lloyd v Loaring and Seely v Schenck that unincorporated societies can neither sue nor be sued in their assumed name, a privilege of corporate bodies only. It held the petitioner is not a 'person' under Article 260 and does not fit within Article 22, and relied on Kenyan authorities holding that societies sue only through officials.

p. 7
02

Priority of locus standi as a threshold question

Holding

Locus standi and jurisdiction must be determined first, before the merits of the petition.

Reasoning

The court held that the right to be heard is foundational; a party without standing has no basis to claim anything before the court, so the substantive questions on the 1984 grant, the adjudication and community land were not reached.

p. 5

Legal principles established

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  • A society registered under the Societies Act is not a corporate body and cannot sue or be sued in its own name; it can only sue or be sued through its officials.
  • Locus standi denotes the right to appear and be heard in court; without it a party cannot be heard even on a meritorious case.

Court orders

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  1. 1.The Petition is dismissed with costs to the respondents

Authorities

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Legislation

  • Constitution of Kenya 2010Articles 1, 2, 3, 6, 10, 22, 23, 25, 27, 28, 29, 40, 47, 52, 56, 60, 61, 62, 63, 64, 68, 69, 76, 258, 260
  • Trust Land Act
  • Land Adjudication Act
  • Community Land Act No. 27 of 2016
  • Land Registration Act of 2012
  • National Land Commission ActSection 15
  • Societies Act
  • Registered Land Act (repealed)
  • Civil Procedure RulesOrder 21 rule (1)

Cases cited (13)

  • Anarita Karimi Njeru v R [1979]

    Threshold of precision/specificity in pleading constitutional violations

  • Mumo Matemu v Trusted Society of Human Rights

    Locus standi / public interest litigation standing

  • Kipsiwo Community Self Help Group v Attorney General & Others [2013] eKLR

    Capacity of unincorporated groups to sue in their own name

  • Kenya National Chamber of Commerce & Industry (Muranga Chapter) & 2 Others v Delmonte Kenya Ltd & 3 Others

    Societies must sue through officials

  • Mohamed Abduba Dida v Debate Media Limited & Another [2018] eKLR

    No evidence of discrimination under Article 27

  • Law Society of Kenya v Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000

    Locus standi signifies a right to be heard; sufficiency of interest

  • Alfred Njau and Others v City Council of Nairobi [1982] KAR 229
    [1982] KAR 229

    Locus standi means a right to appear in court

  • Lloyd v. Loaring (1802, Ch.) 6 Ves. 773
    6 Ves. 773, 777

    Courts must not permit unincorporated persons to sue in a corporate character

  • Pipe v. Bateman

    Accord with Lloyd v Loaring on unincorporated societies

  • Seely v Schenck & Denise, quoted in Richardson v Smith & Co. [1885] 21 FLA. 336
    [1885] 21 FLA. 336, 341

    Unincorporated societies can neither sue nor be sued in their assumed name

  • Keekonyokie Farmers Cooperative Society Ltd v Hon. Engineer Peter Mositet & 18 others; Nairobi ELC Suit No.936 of 2014

    A body that has ceased to exist as a corporate body lacks capacity to sue

  • Mavoko Land Development Company Limited v Mlolongo Catholic Church & 2 others [2022] eKLR
    [2022] eKLR

    A society registered under the Societies Act can only sue or be sued through its officials

  • Evans Otiende Omollo v School Committee Union Primary School and Another [2015] eKLR, Kisumu ELC Case No 225 of 2014
    [2015] eKLR

    Suing non-existent entities is an abuse of the court's process

Jurisdiction invoked
Articles 22, 23 and 258 of the Constitution of Kenya 2010 (enforcement of Bill of Rights); Environment and Land Court jurisdiction over land and environment constitutional petitions

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, "Taireni Association of Mijikenda v Chakama Ranching Limited & 7 others; National Land Commission & 2 others (Interested Parties)", Case Analysis (2023). Environment and Land Petition 15 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18551/eng@2023-07-07

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