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ELCStruck OutMiscellaneous Application dated 23/10/2023 (Nandi Hills)· [2024] KEELC 5131 (KLR)

Diocese of Eldoret Trustees Registered v ACK Diocese of Kapsabet Nandi Hills Paris (Environment and Land Miscellaneous Application E001 of 2023) [2024] KEELC 5131 (KLR)

Environment and Land Court
11 July 2024
1,135 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court struck out a land boundary application because a church registered under the Societies Act cannot be sued in its own name—only through its trustees.

What this practically means

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Executive summary

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The Applicant, through Fr. Michael Langat of Our Lady of Peace Catholic Mission, Nandi Hills Parish and registered proprietor of Nandi Hills Township/291, applied by notice of motion dated 23/10/2023 for orders compelling the Nandi County Land Surveyor to survey and fix beacons on the boundary between that parcel and L.R. No. 7830/90, and for police security from the OCS Nandi Hills during the exercise. He contended the existing ground boundaries did not conform with survey records and that the Respondent had refused to co-operate despite summons by the County Land Surveyor. The Respondent, the Anglican Church of Kenya Nandi Hills Parish, replied through Venerable Elijah Rotich that L.R. Nos. 7830/60 and 7830/62 belonged to it under its registered trustees, the Church Commissioners of Kenya; that as a society registered under the Societies Act it was not a legal person capable of being sued; that the disputed parcel was public land reserved for Kenya Power under the approved development plan; that no common boundary existed; and it lodged a preliminary objection to like effect. The court framed five issues and resolved the threshold question of legal capacity first. Agreeing with the Respondent and applying African Orthodox Church of Kenya v Charles Omuruka, it held that a society registered under the Societies Act is not a legal entity capable of suing or being sued in its own name and may only litigate through trustees or officials in a representative capacity, and that capacity to be sued is a substantive issue rather than a technicality curable under Article 159 of the Constitution. The Applicant was accordingly non-suited, and the application was struck out in its entirety without consideration of the merits, with no orders as to costs, on 11 July 2024 at Kapsabet.

Key legal issues

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01

Whether the Respondent, a church registered under the Societies Act, is a legal person capable of being sued

Holding

No. Societies registered under the Societies Act lack legal capacity to sue or be sued in their own names; they can only act through their trustees or officials in a representative capacity. The Respondent's registered trustees are the Church Commissioners of Kenya.

Reasoning

The court held that capacity to sue or be sued is a substantive point of law, not a curable technicality under Article 159. Relying on African Orthodox Church of Kenya v Charles Omuruka, it adopted Mwita J's holding that societies under the Societies Act are not legal entities and can only sue through trustees or officials in a representative capacity. The Respondent's trustees were the Church Commissioners of Kenya, so the application against it was misconceived.

p. 3
02

Whether the application should be determined on the merits

Holding

No. Having found the Applicant non-suited against the Respondent, the court struck out the application without considering the merits or the remaining issues.

Reasoning

Because the first issue was a point of law capable of terminating the proceedings and was resolved against the Applicant, the court found it unnecessary to address jurisdiction, the existence of a boundary dispute, or the exhaustion of the statutory dispute-resolution mechanisms under the Land Registration Act and the Land Act.

p. 3

Legal principles established

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  • A society registered under the Societies Act is not a legal entity capable of suing or being sued in its own name; it may only sue or be sued through its trustees or officials in a representative capacity, and legal capacity to be sued is a substantive issue, not a technicality curable under Article 159 of the Constitution.

Court orders

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  1. 1.The Applicant's application dated 23/10/2023 is struck out
  2. 2.No orders as to costs

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159
  • Societies Act
  • Land ActSections 18 and 19
  • Land Registration ActSections 79, 80, 86 and 91

Cases cited (2)

  • Reuben Kioko Mutiane v Hellen Ndunda
    (2021) eKLR
  • African Orthodox Church of Kenya v Charles Omuruka & another
    2014 (eKLR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over boundary disputes relating to land (sought under Section 19 of the Land Act; Respondent invoked Sections 18 of the Land Act and 79, 80, 86 and 91 of the Land Registration Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Diocese of Eldoret Trustees Registered v ACK Diocese of Kapsabet Nandi Hills Paris (Environment and Land Miscellaneous Application E001 of 2023) [2024] KEELC 5131 (KLR)", Case Analysis (2024). Miscellaneous Application dated 23/10/2023 (Nandi Hills). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5131/eng@2024-07-11

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