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ELCStruck OutEnvironment & Land Case 89 of 2013· [2023] KEELC 20641 (KLR)

Ndengwa v Dandora Juakali Association

Environment and Land Court of Kenya
12 October 2023
6,629 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Kenyan court threw out a landowner's case because he sued an association that legally doesn't exist, instead of its officials.

What this practically means

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Executive summary

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The plaintiff sued Dandora Juakali Association seeking a declaration that he was the registered owner of Plots 291 and 293 of the HDDCD001/6 Scheme, a permanent injunction against trespass, costs and interest. His case was that he bought the plots from one Anthony Njoroge Njoki in 2004, receiving share certificates originally issued by Mali Mugu Jua Kali Association Development Project, later Kayole Junction Housing Scheme, and finally the defendant association. The defendant entered appearance but filed no defence and did not participate; the matter proceeded by formal proof with four plaintiff witnesses. The court, sua sponte as it were, framed three issues: whether a suit can be maintained against an association like the defendant, whether the suit was legally tenable, and whether the plaintiff had proved his case. Holding that the defendant was an unincorporated association with no certificate of registration or incorporation, the court found it had no legal capacity to be sued in its own name; the plaintiff ought to have sued its officials or registered trustees. Applying Deposit Protection Fund Board v Rosaline Njeri Macharia and Macfoy v United Africa Co Ltd, the court held the suit was a nullity ab initio, incapable of amendment and not saved by Article 159(2)(d). In the alternative, the plaintiff's evidence was contradictory - PW3 and PW4's adopted witness statements claimed the plots for themselves - and fell below the standard required by sections 107, 108 and 109 of the Evidence Act. The suit was struck out with no orders as to costs.

Key legal issues

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01

Whether a suit can be maintained against an unincorporated association

Holding

No - an association which is neither incorporated nor a body corporate has no legal capacity to sue or be sued in its own name; the proper parties are its officials or registered trustees

Reasoning

The court found no certificate of registration, society registration or incorporation for the defendant. Ordinary associations registered under the Ministry of Sports, Gender, Culture and Social Services have no legal personality. Relying on Geoffrey Ndirangu v Chairman Mariakani Jua Kali Association and Voi Jua Kali Association v Sange, the court held the plaintiff should have sued the chairperson, treasurer, secretary or management committee members on behalf of the association.

p. 8
02

Whether a suit against a non-existent entity is curable by amendment or saved by Article 159(2)(d)

Holding

No - such a suit is a nullity ab initio, dead and incapable of amendment; the overriding objective cannot resuscitate it

Reasoning

Applying Deposit Protection Fund Board v Rosaline Njeri Macharia, the court adopted the reasoning that a suit not by or against a legal person is a nullity, and where there is no suit in being, amendment does not arise. The Macfoy v United Africa Co Ltd dictum that you cannot put something on nothing and expect it to stay there was endorsed. Article 159(2)(d) cannot breathe life into a dead suit.

p. 10
03

Whether the plaintiff proved his case on formal proof

Holding

No - the evidence was contradictory and inconsistent and fell below the standard required by sections 107, 108 and 109 of the Evidence Act

Reasoning

Although the defendant did not file a defence or participate, the plaintiff still had to prove his claim. PW3 and PW4 adopted witness statements asserting that they, not the plaintiff, bought and owned the suit plots, creating unresolved contradictions with PW1's evidence. The court cannot choose which evidence to believe for a party; the obligation to synchronize evidence lies on the party who would fail if contradictory evidence is placed before the court.

p. 2

Legal principles established

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  • An unincorporated association is not a legal entity and cannot sue or be sued in its own name; it must sue or be sued through its officials or registered trustees
  • A suit mounted against a non-existent body is a nullity ab initio, incapable of amendment or redemption
  • Even in undefended formal proof proceedings, the plaintiff bears the burden of proving the claim on a balance of probabilities

Court orders

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  1. 1.The suit vide amended Plaint dated the 15th December 2022 is struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010article 159(2)(d)
  • Evidence Act (cap 80)sections 107, 108, 109

Cases cited (7)

  • Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) v Rosaline Njeri Macharia & another
    Civil Appeal 64 of 2007; [2016] KECA 804 (KLR)

    A suit not by or against a legal person is a nullity, incapable of amendment or resuscitation

  • Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) v Rosaline Njeri Macharia & Guardian Bank Limited
    Civil Appeal 64 of 2007; [2016] KECA 804 (KLR)

    Same authority, repeated citation

  • Moi, Daniel Toroitich Arap v Mwangi Stephen Muriithi & another
    Civil Appeal 240 of 2011; [2014] KECA 642 (KLR)

    Standard of proof in civil cases does not change in formal proof proceedings despite absence of defence

  • Ndirangu, Geoffrey v Chairman Mariakani Jua Kali Association & 2 others
    Civil Suit 33 of 2004; [2005] KEHC 532 (KLR)

    A society not being a legal person cannot sue or be sued in its own name; it must sue or be sued through named officials

  • Ngei II Estate Residents' Association (suing Through Mauleed Majeed Kipkoech Jasho as the Registered Official and Chairperson of the Association) v Nairobi City County & 5 others; Broadlands Limited & 6 others (Interested Parties)
    Environment & Land Petition E037 of 2021; [2022] KEELC 3205 (KLR)

    An association registered under the Societies Act is not a body corporate and lacks legal capacity to sue or be sued in its own name

  • Voi Jua Kali Association v Sange and others
    [2002] 2 KLR 474

    A society must sue or be sued through its officials

  • Macfoy v United Africa Co Ltd
    [1961] 3 All E.R. 1169

    An act which is void is a nullity, incurably bad; you cannot put something on nothing and expect it to stay there

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over disputes relating to land (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, "Ndengwa v Dandora Juakali Association", Case Analysis (2023). Environment & Land Case 89 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20641/eng@2023-10-12

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