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ELCOtherNot stated in judgment (Malindi ELC)· [2024] KEELC 5727 (KLR)

Active Environmental Team v The National Land Commission & 2 others (Petition 27 of 2021) [2024] KEELC 5727 (KLR)

Environment and Land Court
31 July 2024
1,939 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 ruling by Mwangi Njoroge, Judge of the Environment and Land Court at Malindi, determines a Notice of Motion dated 12th June 2023 by the 3rd respondent seeking to strike out a petition and cross-petition on the ground that the petitioner, Active Environmental Team, a community based organization registered as a self-help group, lacked capacity to sue in its own name. The 2nd respondent, the Governor of Tana River County, opposed, relying on Articles 22(2)(d) and 260 of the Constitution, arguing an association may sue on behalf of its members and amendment could cure any defect. The petitioner similarly opposed. The court held that although Article 260 defines 'person' to include unincorporated associations, entitling the petitioner to invoke Article 22, settled authority (Kipsiwo, Kituo Cha Sharia, Eritrea Orthodox Church, Daniel Nzioki Kiangi) establishes that unincorporated entities cannot sue in their own names and must litigate through their officials in a representative capacity. However, the defect was not fatal: Rule 18 of the Mutunga Rules permits amendment at any stage, and precedent supported allowing the petitioners to include their officials. The court disallowed the application, ordered the petitioner to amend its petition within 21 days naming its officials as suing on its behalf, fixed a mention for 16/10/2024 to confirm compliance, and ordered the petitioner to bear the costs of the application. The petition survives for hearing on the merits.

Key legal issues

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01

Whether an unincorporated community based organization has capacity to file a constitutional petition in its own name

Holding

It does not; it must sue through its officials in a representative capacity

Reasoning

Article 260 defines 'person' to include associations whether incorporated or unincorporated, so the petitioner qualifies as a person entitled to institute proceedings under Article 22. However, case law establishes that unincorporated entities have no legal capacity to sue or be sued in their own names; they must litigate through their officials. The court adopted the reasoning in Kipsiwo and related authorities.

p. 3
02

Whether the capacity defect is fatal to the petition or curable by amendment

Holding

The defect is curable; the petitioner may amend its petition to name its officials as suing on its behalf

Reasoning

Relying on Rule 18 of the Constitution of Kenya (Protection of Rights and Fundamental Rights) Practice and Procedure Rules, 2013, and precedent allowing amendment in similar circumstances, the court held the mistake not fatal since the objection was raised at an early stage and the anomaly can be corrected at original jurisdiction stage.

p. 4
03

Whether the cross-petition falls if the petition fails for want of capacity

Holding

Not determined finally since the application was disallowed and amendment allowed

Reasoning

The 3rd respondent argued the cross-petition would fall with the petition; the 2nd respondent contended his cross-petition should survive. The court did not strike out the petition, so the fate of the cross-petition on capacity grounds did not arise for determination.

p. 2

Legal principles established

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  • An unincorporated association registered as a self-help group or CBO cannot sue in its own name; it may only sue through its officials or members in a representative capacity, but such a defect is curable by amendment under Rule 18 of the Mutunga Rules

Court orders

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  1. 1.The petitioner shall amend its petition within 21 days and name its officials as suing on its behalf
  2. 2.The costs of the present application shall be borne by the petitioner
  3. 3.The petition shall be mentioned on 16/10/2024 to confirm compliance

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Constitution of KenyaArticle 22, Article 22(2)(d), Article 260
  • Constitution of Kenya, (Protection of Rights and Fundamental Rights) Practice and Procedure Rules, 2013Rule 18
  • Societies ActCap 108
  • Civil Procedure RulesOrder 1 rule 8

Cases cited (6)

  • Kipsiwo Community Self Help Group Vs the Attorney General & 6 Others
    Eldoret Petition No 9 Of 2013
  • Kituo Cha Sharia Vs John Ndirangu Kariuki & Another
  • Dennis Ololoigero & 2 Others V The Art Of Ventures Ltd & 2 others
    Nairobi HCCC 1358 of 2005 (2006) eKLR
  • Daniel Nzioki Kiangi & 2 others v Priscilla Musili Mulwa, Mutuku Kimanthi, Mueni Kikuswi (Suing on their Own Behalf and on Behalf of 47 Members of Meka Self Help Group)
    [2021] eKLR
  • Eritrea Orthodox Church vs. Wariwax Generation Ltd.
    [2007] eKLR
  • Oficials of Mission in Action Nakuru Baby Ophanage v Rigiri & 3 others
    (Environment & Land Case E34 of 2023) [2023] KEELC 21021 (KLR) (26 October 2023) (Ruling)
Jurisdiction invoked
Section 1A, 1B and 3A of the Civil Procedure Act; Article 22 and Article 260 of the Constitution

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, "Active Environmental Team v The National Land Commission & 2 others (Petition 27 of 2021) [2024] KEELC 5727 (KLR)", Case Analysis (2024). Not stated in judgment (Malindi ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5727/eng@2024-07-31

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