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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 1891 (KLR)

Kamau (Suing on his own Behalf and as the Administrator fo the Estate of Faith Nungari (Deceased)) v Registered Trustees of the Anglican Church of Kenya –ACK (St Mathias Church, Njiru) (Environment and Land Case E070 of 2024) [2026] KEELC 1891 (KLR)

Environment and Land Court
4 March 2025
MOMogeni
2,122 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled a church branch couldn't be sued as a named entity—suing churches requires naming registered trustees personally, and wrong courts transfer, not kill, cases.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (Mogeni J) determines a Notice of Preliminary Objection dated 8 July 2024 filed by the Defendant, a church described as a society registered under the Societies Act. The Defendant raised five grounds: lack of legal capacity to sue or be sued, want of pecuniary jurisdiction, defective proceedings, scandalous and incurably defective pleading, and frivolity/abuse of process. The Plaintiff filed Grounds of Opposition and both parties filed written submissions with cited authorities. The Court identified two issues: its pecuniary jurisdiction and the merits of the objection. On jurisdiction, the Court held that although magistrates have been gazetted under Section 26(3) and (4) of the Environment and Land Court Act to handle land matters, their existence does not oust the ELC's original jurisdiction; and since no evidence of the value of the suit property was tendered, the Court could not assume the value fell below its pecuniary jurisdiction. A wrongly filed suit would be transferred, not struck out. On the objection itself, applying Mukisa Biscuit, the capacity question is a pure point of law. Relying on Halsbury's Laws, the Free Pentecostal Fellowship case and Section 3(3) of the Trustees (Perpetual Succession) Act, the Court held that the Defendant, an unincorporated body, lacked capacity to be sued in its own name; the Plaintiff should have sued the trustees in their individual names in a representative capacity. The objection was allowed, but rather than striking out the suit, the Court granted the Plaintiff 30 days to amend the Plaint to name the registered trustees individually, ordered service within 14 days, and set the suit for mention on 01/04/2025. No costs order was made.

Key legal issues

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Pecuniary jurisdiction of the Environment and Land Court over the suit

Holding

The Court is seized of the matter because the value of the suit property was neither pleaded nor proved, and gazetted magistrates' jurisdiction does not oust the ELC's original jurisdiction.

Reasoning

The Defendant argued the suit property was worth less than Kshs. 20,000,000/- and belonged in the Magistrate's Court. The Court noted Section 26(3) and (4) of the Environment and Land Court Act and Gazette Notices appointing magistrates, but held these do not oust the ELC's original jurisdiction. No valuation evidence was tendered by either side, so the Court could not assume the value fell below its pecuniary jurisdiction. A suit filed in the wrong forum would be transferred, not struck out.

p. 3
02

Whether the Defendant's Preliminary Objection raising the Defendant's capacity to be sued has merit

Holding

The Preliminary Objection raises a pure point of law and has merit: the Defendant is an unincorporated body without capacity to be sued in its own name.

Reasoning

Applying the Mukisa Biscuit test, the objection on locus standi/capacity is a pure point of law. The Defendant, described as 'The Trustees of the Anglican Church of Kenya – A.C.K (St Mathias Church, Njiru)', is an unincorporated body. Following Halsbury's Laws and the Free Pentecostal Fellowship case, an unincorporated body must sue or be sued through its members or trustees. Section 3(3) of the Trustees (Perpetual Succession) Act confers corporate capacity only on registered trustees. The Plaintiff should have sued the trustees individually.

p. 5

Legal principles established

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  • Jurisdiction is everything; a court without jurisdiction must down its tools and the issue must be determined first.
  • The existence of gazetted magistrates with land jurisdiction does not oust the original jurisdiction of the Environment and Land Court; overreach is remedied by transfer, not striking out.
  • An unincorporated body lacks legal personality and must sue or be sued through its members or trustees in a representative capacity.
  • Under Section 3(3) of the Trustees (Perpetual Succession) Act, only appointed trustees who become a body corporate can sue and be sued in their corporate name.

Court orders

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  1. 1.The Defendant's Preliminary Objection is allowed on the ground that the Defendant is an unincorporated society without capacity to be sued in its own name
  2. 2.The Plaintiff shall within 30 days amend the Plaint to include the registered trustees' individual names in the title and describe them as 'as suing on behalf' of the body named
  3. 3.The amended Plaint shall be served on the other parties within 14 days of its filing
  4. 4.The suit shall be mentioned on 01/04/2025 to ascertain compliance and for further directions as to hearing
Jurisdiction invoked
Environment and Land Court Act, 2011 (original jurisdiction over environment and land matters); preliminary objection under the Societies Act and Magistrates' Courts Act pecuniary limits raised

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, "Kamau (Suing on his own Behalf and as the Administrator fo the Estate of Faith Nungari (Deceased)) v Registered Trustees of the Anglican Church of Kenya –ACK (St Mathias Church, Njiru) (Environment and Land Case E070 of 2024) [2026] KEELC 1891 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1891/eng@2026-03-04

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