Chairman AIPCA Church Isiolo v Mugambi (Environment and Land Appeal 16 of 2023) [2025] KEELC 775 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Competence of the suit against a society sued in its own name
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
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.
Consequences of a void suit - nullity and impossibility of amendment
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
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.'
Competence of the appeal filed by the society in its own name
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
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.
Right to fair hearing raised by the Appellant
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
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.
Legal principles established
#- 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
#- 1.The Appeal herein be and is hereby struck out
- 2.The suit in the subordinate court be and is hereby struck out
- 3.The Judgment rendered on the May 24, 2022 be and is hereby quashed and or invalidated
- 4.Each party shall bear own costs of the proceedings before the subordinate court
- 5.Each party shall also bear own costs of the appeal
- 6.The parties are at liberty to take appropriate steps, where necessary subject to the law
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.