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ELCPartially AllowedELC Case of 2024 (Application dated 18.12.2024)· [2025] KEELC 1350 (KLR)

Francis & 2 others (Suing on Their Behalf and on Behalf of the Members of Sosian Community Development Trust (SCODET) CBO as the chairperson, Treasurer and the Vice Secretary Respectively) v Ol Maisor Farm & another (Environment & Land Case E024 of 2024) [2025] KEELC 1350 (KLR)

Environment and Land Court
19 March 2025
1,022 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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A Kenyan court struck out a land dispute suit filed against the wrong name but gave the community 14 days to fix the error and continue the case.

What this practically means

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Executive summary

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The plaintiffs, members of Sosian Community Development Trust (a CBO), filed suit together with a notice of motion dated 18.12.2024 seeking a temporary injunction restraining the defendant from fencing, evicting, trespassing on, or interfering with their quiet possession of riparian land abutting L.R No. 8038/1. They alleged that in November 2024 the defendant fenced its land from Old Maral road to the Ewaso river, restricting their access to their homes and the river. The defendant, through a replying affidavit of Martin James Evans (registered proprietor of L.R. 8038, Ol Maisor Farm), objected that Ol Maisor Farm is not a legal entity capable of being sued, and filed a preliminary objection dated 31.1.2025 seeking striking out of the suit. The plaintiffs filed an amended motion and amended plaint on 17.2.2025 bringing in Evans, and a supplementary affidavit admitting the named defendant was not registered. The court declined to consider the amended documents as they were filed after the ruling date was fixed and had not been made a subject of contest. Upholding the preliminary objection, the court held the suit against Ol Maisor Farm a non-starter as instituted against a non-legal entity. However, declined to strike out the entire suit since the actual defendant is known, guided by Article 159(2)(d) and Section 1A of the Civil Procedure Act. The suit against Ol Maisor Farm was struck out, the applications were struck out, and the plaintiffs were granted 14 days to amend pleadings to reflect the correct party, with each party bearing their own costs.

Key legal issues

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01

Capacity of the named defendant - whether Ol Maisor Farm is suable

Holding

Ol Maisor Farm is not a registered legal entity capable of being sued, and the suit against it must fail

Reasoning

The defendant's deponent, Martin James Evans, asserted that Ol Maisor Farm is not a legal entity capable of being sued. In the supplementary affidavit the plaintiffs themselves admitted that the defendant is not a registered entity. Following Ernest Ngigi Waithaka & 2 Others v Peter Mutunga Gachigi, the court accepted the preliminary objection that a suit against a non-legal entity is a non-starter and struck out the suit against that name.

p. 2
02

Whether the entire suit should be struck out

Holding

No - the entire suit was not dismissed because the actual defendant is known and the Constitution and the Civil Procedure Act require justice without undue regard to procedural technicalities

Reasoning

The court hesitated to strike out the whole suit since the real defendant (Martin James Evans, registered proprietor of L.R. 8038) is identifiable. Relying on Kipsiwo Community Self Help Group v Attorney General on substitution difficulties, and guided by Article 159(2)(d) and Section 1A of the Civil Procedure Act (overriding objective), the court struck out only the suit against the non-entity and granted 14 days to amend pleadings to reflect the correct party and liberty to file a fresh application.

p. 2
03

Treatment of the amended notice of motion and amended plaint filed on 17.2.2025

Holding

The court declined to determine the application on the basis of the amended documents because they were filed after the court fixed the ruling date and were never made a subject of contest

Reasoning

The amendments were filed on 17.2.2025, after the court had on 4.2.2025 given directions and fixed the ruling for 19.3.2025. Leave granted to the plaintiffs was limited to a supplementary affidavit on the issues in the defendant's replying affidavit. The court therefore treated the amended motion and plaint as not existing for purposes of this ruling and confined itself to the documents on record as at 4.2.2025.

p. 2

Legal principles established

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  • A suit instituted against a non-legal entity is a non-starter and should be struck out against that entity
  • Where the actual defendant is known, striking out the entire suit is a draconian measure; the court should instead allow amendment to bring in the correct party, in line with Article 159(2)(d) of the Constitution
  • Amended pleadings filed after the court has given a ruling date, without being made a subject of contest, cannot be considered by the court

Court orders

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  1. 1.The suit against the defendant identified as Ol Maisor Farm is struck out
  2. 2.The application dated 18.12.2024 is struck out, and the amended version dated 14.2.2025 is also struck out
  3. 3.The plaintiff is granted 14 days to amend their pleadings to reflect the correct party
  4. 4.The plaintiffs are at liberty to file a fresh application to capture the correct party
  5. 5.Each party shall bear their own costs in relation to the application dated 18.12.2024 and the preliminary objection dated 31.1.2025

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSection 1A

Cases cited (2)

  • Ernest Ngigi Waithaka & 2 Others v Peter Mutunga Gachigi
    [2017] eKLR
  • Kipsiwo Community Self Help Group v Attorney General And 6 Others
    [2013] KEELC 63 (KLR)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes); procedural discretion grounded in Article 159(2)(d) and Section 1A of the Civil Procedure Act

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, "Francis & 2 others (Suing on Their Behalf and on Behalf of the Members of Sosian Community Development Trust (SCODET) CBO as the chairperson, Treasurer and the Vice Secretary Respectively) v Ol Maisor Farm & another (Environment & Land Case E024 of 2024) [2025] KEELC 1350 (KLR)", Case Analysis (2025). ELC Case of 2024 (Application dated 18.12.2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1350/eng@2025-03-19

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