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ELCStruck OutConstitutional Petition (Notice of Motion dated 28th August 2024)

Taireni Association of Mijikenda v County Government of Kwale & 3 others (Environment & Land Petition E006 of 2024) [2025] KEELC 3275 (KLR)

Environment and Land Court
3 April 2025
5,810 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan community association lost its land case because it registered as a society under the Societies Act and cannot sue in its own name—only through officials or trustees.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kwale (L.L Naikuni, J) determined two competing pleadings in an omnibus decision: a Notice of Motion dated 28th August 2024 by Taireni Association of Mijikenda seeking temporary injunctions restraining the National Land Commission and three other respondents from donating, selling, transferring or dealing with LR No 14211 measuring 63,039Ha at Lungalunga, Kwale County, and a Preliminary Objection dated 28th October 2024 by the 1st Respondent contending that the Petitioner, a community welfare association registered under the Societies Act, was not a corporate body and lacked locus standi to sue. The Petitioner claimed the suit property was community and ancestral land of the Duruma people, held under a lease to Lungalunga Ranching Direct Agricultural Company that expired in 2023, and sought its reversion to the community. Framing three issues, the court applied the Mukisa Biscuits threshold and held the objection raised a pure point of law. Relying on authorities that a society under the Societies Act lacks legal personality, the court found the Petitioner had no capacity to sue in its own name and that the defect could not be cured by Article 159(2)(d). The Petition was struck out as incurably defective. Assuming capacity arguendo, the court found the injunction application lacked merit because an NLC letter annexed by the Petitioner itself contradicted claims of community occupation. Each party was ordered to bear its own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Preliminary Objection dated 28th October 2024 raised by the 1st Respondent meets the threshold founded in law and precedents and hence merited
  2. 2.Whether the Notice of Motion dated 28th August 2024 by the Petitioner meets the threshold required of a temporary injunction under Order 40 Rule 1 of the Civil Procedure Rules, 2010
  3. 3.Who will bear the costs of the Notice of Motion application and the Preliminary Objection

Key legal issues

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01

Whether the preliminary objection on locus standi was merited

Holding

The objection was a true preliminary objection on a pure point of law and was merited; the Petitioner, an unincorporated community welfare association under the Societies Act, lacked capacity to sue in its own name and the petition was struck out as incurably defective

Reasoning

Applying Mukisa Biscuits and subsequent authorities, the court held that locus standi could be determined from the pleadings alone without ascertaining facts. The Petitioner described itself as a Community Welfare Association registered under the Societies Act, hence not a body corporate. The court found the capacity defect could not be cured by Article 159(2)(d) on substantive justice, and that the Petitioner misused constitutional provisions to circumvent its lack of legal capacity.

p. 10
02

Whether the application for temporary injunction met the threshold under Order 40 Rule 1 of the Civil Procedure Rules

Holding

Assuming capacity, the application failed on the merits because a National Land Commission letter availed by the Petitioner contradicted its assertions of community occupation and large-scale livestock farming, and that letter was unchallenged

Reasoning

The court considered the annexture 'PPK-3', a letter from the then NLC vice chairperson stating the lease conditions had been grossly violated through non-payment and non-use, and that squatters had flooded the ranch. This painted a picture inconsistent with the Petitioner's claims. As the letter came from the Petitioner's own documents and was unchallenged, the court was hesitant to grant injunctive orders and dismissed the application as lacking merit.

p. 10
03

Who bears the costs of the application and the preliminary objection

Holding

Each party to bear its own costs, the court exercising discretion in the interest of natural justice, equity and conscience

Reasoning

The court acknowledged that costs follow the event under Section 27(1) of the Civil Procedure Act and Rule 26 of the Mutunga Rules, but noted the Petitioner had failed to establish its case. In the interest of natural justice, equity and conscience, the court directed each party to bear its own costs of the application and the Petition.

p. 11

Legal principles established

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  • A society registered under the Societies Act is not a body corporate and cannot sue or be sued in its own name; it must sue through its officials or trustees
  • Lack of capacity to sue is not a mere procedural technicality curable under Article 159(2)(d) of the Constitution

Court orders

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  1. 1.The Preliminary Objection dated 28th October 2024 be and is hereby allowed
  2. 2.The Petitioner lacks the capacity to sue in its own name
  3. 3.The Constitutional Petition is found to be incompetent, bad in law and incurably defective and is struck out
  4. 4.The Notice of Motion application dated 28th August 2024 is found to lack merit and is dismissed
  5. 5.Each party to bear its own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Articles 22, 23 and 165 of the Constitution of Kenya 2010; Section 13(2) of the Environment and Land Court Act No. 19 of 2011

Relief refused

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Temporary injunction restraining the 1st, 2nd and 3rd Respondents from dealing with LR No 14211 measuring 63,039Ha in Lungalunga, Kwale County

The Petitioner lacked capacity to sue in its own name as an unincorporated association, and on the merits the NLC letter availed by the Petitioner itself contradicted its claim of community occupation, leading the court to hold the application lacked merit

p. 10

Costs

Each party to bear its own costs of the application and the Petition

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the Petitioner herein lacks the capacity to sue in its own name.
p. 11Locus standi - unincorporated association
That the Constitutional Petition herein be and is hereby found to be incompetent, bad in law and incurably defective and thus it is hereby struck out.
p. 11Disposition - striking out
That the Notice of Motion application dated 28th August, 2024 be and is hereby found to lack merit and thus be and is hereby dismissed.
p. 11Disposition - dismissal of injunction application
It is trite law that a society under the Societies Act is not a legal person with capacity to sue or be sued.
p. 9Legal capacity of societies under the Societies Act

Issues in the judgment

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minor

The costs discussion refers to a '1st Interested Party' who does not otherwise appear in the judgment, and states the Petitioner 'failed to establish their case on Preponderance of probabilities' although the petition was struck out on capacity, not decided on evidence

minor

The issues list and the introduction contain inconsistent dates: costs issue framed as 'Notice of Motion application dated 28th August 2014' while the application is dated 28th August 2024; the ruling is also stated as reserved and delivered on '3rd April, 2024' in paragraph 12 but signed and dated 3rd April 2025

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, "Taireni Association of Mijikenda v County Government of Kwale & 3 others (Environment & Land Petition E006 of 2024) [2025] KEELC 3275 (KLR)", Case Analysis (2025). Constitutional Petition (Notice of Motion dated 28th August 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3275/eng@2025-04-03

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