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ELCStruck OutELC E008 of 2021 (originally Mutomo PMCC ELC E008 of 2021)· [2024] KEELC 4159 (KLR)

Redeemed Gospel Church INC v Jesus Celebration Centre Ministry INT & 3 others (Environment & Land Case 2 of 2023) [2024] KEELC 4159 (KLR)

Environment and Land Court
16 May 2024
1,854 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a church's land suit because a society registered under the Societies Act cannot sue in its own name — only through trustees or officials.

What this practically means

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Executive summary

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The plaintiff, describing itself as Redeemed Gospel Church Inc., sued claiming to be the bonafide purchaser for value of Land Parcel Mutomo/mwala/1103 and sought a declaration of ownership, cancellation and registration of the title in its name, a permanent injunction against the defendants, and compelled execution of transfer instruments. The suit, originally filed at Mutomo Principal Magistrates' Court, was transferred to the Environment and Land Court at Kitui. Before hearing, the 1st and 2nd defendants raised a preliminary objection that the plaintiff, a society registered under the Societies Act, is an unincorporated body lacking capacity to sue in its own name; the 3rd and 4th defendants supported the objection. The plaintiff countered that the objection failed the Mukisa Biscuit threshold and that any defect was amendable. Applying Mukisa Biscuit and Oraro v Mbajja, the court held the objection raised a pure point of law arising from the pleadings, since the plaintiff itself pleaded it was a registered society. Relying on Peter Ngugi Geoffrey v Mithini SDA Church, Festus Makau Kitati and John Otteyo Amwayi, the court held that societies lack legal capacity to sue in their own names and must sue through officials or trustees. The plaintiff's amendment application had earlier been dismissed for non-attendance and none was pending. The preliminary objection was allowed, the plaintiff was declared to lack capacity to sue, the suit was struck out as incompetent, bad in law and incurably defective, with costs awarded to the defendants.

Key legal issues

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01

Whether a preliminary objection on capacity to sue is a pure point of law

Holding

Yes - the objection that a registered society cannot sue in its own name raises a pure point of law within the Mukisa Biscuit threshold

Reasoning

The court applied the Mukisa Biscuit definition and Oraro v Mbajja, holding that a preliminary objection must not be blurred with factual details requiring proof. The plaintiff itself pleaded in the plaint that it is a society registered under the Societies Act, so the incapacity arose by clear implication from the pleadings without need for evidence.

p. 3
02

Whether the plaintiff, described as a society under the Societies Act, has locus standi to sue in its own name

Holding

No - the plaintiff lacks capacity to sue in its own name and the preliminary objection is merited

Reasoning

Relying on Peter Ngugi Geoffrey v Mithini SDA Church, Festus Makau Kitati v New Konza Ranch Associations and John Otteyo Amwayi, the court held that societies are unincorporated and the Societies Act makes no provision for suits by or against them in their own names. The plaintiff should have sued through its officials or trustees; its belated amendment application having been dismissed, the objection succeeded.

p. 4
03

Whether the defect could be cured by amendment

Holding

The court rejected the plaintiff's submission that the error could be corrected by amendment, since no amendment application was pending

Reasoning

The plaintiff argued striking out is draconian and the error amendable, but the court noted it had filed no application to amend despite being served with the objection in January 2024, and its earlier application dated June 29, 2021 to join registered trustees and the regional overseer had been dismissed for non-attendance on October 17, 2023.

p. 4

Legal principles established

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  • A society registered under the Societies Act is not a body corporate and lacks capacity to sue or be sued in its own name; it must sue or be sued through its officials or trustees

Court orders

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  1. 1.The preliminary objection dated January 15, 2024 is allowed.
  2. 2.A declaration that the Plaintiff lacks the capacity to sue in its own name.
  3. 3.The suit is struck out as incompetent, bad in law and incurably defective.
  4. 4.Costs of the suit awarded to the defendants, to be paid by the Plaintiff.

Authorities

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Legislation

  • Societies Actcap 108; section 3

Cases cited (11)

  • Republic v Registrar of Societies ex-parte Narok Muslim Welfare Association
    (2017) eKLR
  • Islamia Madrassa Society v Zafar Niaz & 8 others
    (2021) eKLR
  • Veronica Wanjira Maringa & 26 others v ACK, Buxton Diocese of Taita Taveta & another
    (2022) eKLR
  • Alfred Njau & 5 others v City Council of Nairobi
    (1983) eKLR
  • Kipsiwo Community helf-help group v Attorney General and 6 others
    (2013) eKLR
  • John Otteyo Amwayi & 2 others v Rev. George Abura & 2 others
    Civil Appeal No 6339 of 1990
  • African Orthdox Church of Kenya v Rev. Charles Omuroka & another
    (2014) eKLR
  • Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd
    (1969) E.A 696
  • Oraro v Mbajja
    (2005) eKLR
  • Peter Ngugi Geoffrey & 3 others v Mithini SDA Church
    (2019) eKLR
  • Festus Makau Kitati v New Konza Ranch Associations
    [2019] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court; suit transferred from the Principal Magistrates' Court at Mutomo by order dated March 23, 2023

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, "Redeemed Gospel Church INC v Jesus Celebration Centre Ministry INT & 3 others (Environment & Land Case 2 of 2023) [2024] KEELC 4159 (KLR)", Case Analysis (2024). ELC E008 of 2021 (originally Mutomo PMCC ELC E008 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4159/eng@2024-05-16

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