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ELCStruck OutNot stated in the judgment· [2025] KEELC 775 (KLR)

Chairman AIPCA Church Isiolo v Mugambi (Environment and Land Appeal 16 of 2023) [2025] KEELC 775 (KLR)

Environment and Land Court
13 February 2025
3,142 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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Kenya's Environment and Land Court struck out an entire land suit because a church society was sued in its own name instead of through its named trustees.

What this practically means

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Executive summary

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The Respondent (Plaintiff in the subordinate court) sued the Appellant (Defendant), a Christian organization registered as a society under the Societies Act, Cap 108, claiming ownership of plot Zone B Commercial/104 Isiolo Township plus a permanent injunction. On 24th May 2022 the Chief Magistrate found the plot belonged to the Respondent and granted the reliefs sought. The Defendant appealed, contending it was denied an opportunity to be heard, that the matter was heard ex parte, that its defence documents were ignored, and that the judgment was against the weight of evidence. Written submissions were filed by both parties. The court (Oguttu Mboya, J) framed two issues: the competence of the suit given that the Defendant was a society, and the competence of the appeal. Holding that a society registered under the Societies Act lacks legal personality and can only sue or be sued through registered trustees or officials named personally, and that the Plaintiff neither ascertained nor impleaded such trustees by name, the court found the suit incompetent, a nullity void ab initio and incapable of amendment, since the identity of parties goes to the root of the suit and jurisdiction. The trial proceedings and judgment were accordingly nullities. By parity of reasoning, the Appellant society, incapable of being sued in its own name, could not file or sustain an appeal in its own name; the appeal was a nullity filed by a non-existent body. The court declined to interrogate the merits, observing that the Appellant had been afforded an opportunity to canvass its case before the subordinate court and could not invoke fair hearing. The appeal and the underlying suit were struck out, the trial judgment quashed and invalidated, and each party ordered to bear its own costs both in the subordinate court and on appeal.

Key legal issues

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01

Competence of the suit against a society sued in its own name

Holding

The suit was incompetent and void because the Defendant, a society registered under the Societies Act, was sued in its own name without impleading its registered trustees or officials by name

Reasoning

Paragraph 2 of the amended plaint disclosed the Defendant as a society registered under the Societies Act, Cap 108. A society is not a legal person; suits by or against it must be brought through registered trustees or officials whose names, not titles, are disclosed. The Plaintiff made no effort to ascertain whether registered trustees existed or to implead them by name, going to the root of the suit and the court's jurisdiction.

p. 5
02

Consequences of a void suit - nullity and impossibility of amendment

Holding

The entire proceedings and judgment of the trial court were nullities and void; the defect could not be cured by amendment because the identity of a party is a critical ingredient of a suit

Reasoning

Relying on Mcfoy v United Africa and Euro Bank v Rosaline Njeri Macharia, the court held that what is void is a nullity needing no order to set it aside, and that unlike D.T. Dobie (where a suit was in being and amendable), here there was no suit in law at all, so amendment was unavailable - 'the patient is in the morgue.'

p. 5
03

Competence of the appeal filed by the society in its own name

Holding

By parity of reasoning, the Appellant society could not file or sustain the appeal; the appeal was a nullity filed by a non-existent body and was struck out

Reasoning

The court reasoned that a body incapable of being sued in its own name under the Societies Act cannot metamorphose into a legal entity for purposes of appealing. The appeal was therefore dead before arrival and belonged, in the words of the Court of Appeal, to the morgue; consequently the merits of the appeal were not interrogated.

p. 6
04

Right to fair hearing raised by the Appellant

Holding

The Appellant was afforded the requisite opportunity to canvass its case before the subordinate court and cannot invoke the right to fair hearing; in any event, no valid suit or appeal existed on which such a complaint could rest

Reasoning

The court noted the Appellant entered appearance, filed a defence and documents but never attended the hearing nor tendered its evidence, and at the mention of 8th February 2022 obtained time to file submissions but failed to do so. Citing Gladys Boss Shollei v JSC, the court declined the fair-hearing complaint, and in any event did not interrogate the merits because both suit and appeal were nullities.

p. 6

Legal principles established

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  • A society or association registered under the Societies Act, Cap 108 is not a legal person and can only sue or be sued through its registered trustees or officials, whose names (not titles) must be disclosed
  • A suit commenced against a non-existent party/entity is a nullity, incurably bad, incapable of amendment and collapses automatically without need of an order to set it aside
  • Where the suit is a nullity there is no litigation in being and no appeal can arise from it; a party incapable of being sued in its own name cannot become a legal entity for purposes of filing an appeal
  • The only circumstance in which an organization may be sued through registered trustees without naming them is where it is registered as a body corporate under the Perpetual Trust Act, Cap 57

Court orders

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  1. 1.The Appeal herein be and is hereby struck out
  2. 2.The suit in the subordinate court be and is hereby struck out
  3. 3.The Judgment rendered on the May 24, 2022 be and is hereby quashed and or invalidated
  4. 4.Each party shall bear own costs of the proceedings before the subordinate court
  5. 5.Each party shall also bear own costs of the appeal
  6. 6.The parties are at liberty to take appropriate steps, where necessary subject to the law

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 50 (right to fair hearing)
  • Societies ActChapter 108, Laws of Kenya
  • Perpetual Trust ActChapter 57, Laws of Kenya
  • Civil Procedure Rules, 2010Order 42 Rule 13

Cases cited (11)

  • J.M.K vs MW.M and another
    (2015) eKLR
  • Onyango vs Attorney General
    (1987) eKLR
  • Mbaki & others vs Macharia & another
    (2005) 2 E.A 2006
  • Geofirey Ndirangu versus Chairman Mariakani Jua Kali Association & 2 Others
    (2005) eKLR
  • Voi Jua Kali Association -vs- Sange and others
    (2002) 2 KLR 474
  • Ngati & 3 others v Mutie & 7 others
    (Environment and Land Case Civil Suit 63 of 2018) [2023] KEELC 17878 (KLR) (18 May 2023)
  • The Executive Committee of Ngei Estate Phase II versus Eric Mureith Waweru
    Milimani ELC No. E013 of 2020 (unreported)
  • Benjamin Leonard Mcfoy vs United Africa
    (1961) All ER 1169
  • Euro Bank in liquidation through the Deposit Protection Fund Board v Rosaline Njeri Macharia
    [2016] eKLR
  • D. T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another
    Civil Appeal No. 37 of 1978
  • Gladys Boss Shollei vs Judicial Service Commission
    (2022) KESC (Supreme Court Judgment, paragraph 257)
On appeal from
Chief Magistrate's Court (the Trial Court)
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction under the Civil Procedure Act read with Order 42 Rule 13 of the Civil Procedure Rules 2010 (not expressly cited in the judgment; the appeal lies against the subordinate court's judgment)

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, "Chairman AIPCA Church Isiolo v Mugambi (Environment and Land Appeal 16 of 2023) [2025] KEELC 775 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/775/eng@2025-02-13

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