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ELCPartially AllowedMarsabit Environment and Land Court Appeal (Memorandum of Appeal dated 06.11.2025) from Marsabit CMELC Number E003 of 2023· [2026] KEELC 2915 (KLR)

Catholic Church Mission v Abduba (Environment and Land Appeal E029 of 2025) [2026] KEELC 2915 (KLR)

Environment and Land Court of Kenya
13 May 2026
4,120 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled a suit against a religious society registered under the Societies Act was a nullity because societies cannot be sued in their own name.

What this practically means

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Executive summary

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The Appellant, a religious organization registered under the Societies Act, Cap 108, was the defendant in Marsabit CMELC Number E003 of 2023, a land dispute over LR No. Marsabit/Jirme/46. The trial magistrate (Hon. Christine Wekesa – SPM) entered judgment for the Respondent in terms of prayers (a) and (b) of the plaint — declarations of ownership and a permanent injunction — and struck out the Appellant's counterclaim without giving reasons. The Appellant appealed on multiple grounds concerning root of title, fraud, evidentiary burden and the striking out of its counterclaim. At a mention, the court raised, suo motu, the question of the Appellant's locus standi, and parties filed brief submissions. The court framed two issues: whether the suit against the Appellant was defeated by want of locus standi, and the legal consequences of proceedings against a party devoid of legal capacity. Holding that societies registered under the Societies Act are not bodies corporate and may only sue or be sued through registered officials or trustees, the court found the Appellant had no capacity to be sued. The constitutional exception (Articles 22 and 258) applies only to petitions, not ordinary civil suits. Relying on Deposit Protection Fund v Rosaline Njeri Macharia and the McFoy dictum, the court held the entire suit, proceedings and judgment were nullities, irredeemable by amendment. The appeal was allowed; the suit and judgment were declared nullities, set aside and struck out, with each party bearing their own costs both here and below. Fresh proceedings were left open, the ownership dispute having never been validly determined on the merits.

Key legal issues

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01

Whether the Appellant, a society registered under the Societies Act, had legal capacity to be sued

Holding

The Appellant is an unincorporated body devoid of juristic capacity; it could only have been sued through its officials or registered trustees, and was therefore bereft of locus standi to be sued.

Reasoning

The judgment reasons that organizations registered under the Societies Act do not accrue corporate status and cannot sue or be sued in their own names. The constitutional exception under Articles 22 and 258 applies only to constitutional petitions, not ordinary civil suits. Counsel for the Appellant conceded the point, and counsel for the Respondent did not contest the Appellant's status. The plaint's description of the Appellant showed no body corporate.

p. 5
02

The legal effect of proceedings and judgment against a party without locus standi

Holding

The suit, the proceedings and the consequential judgment are nullities, irredeemable by amendment, and were accordingly set aside with the suit struck out.

Reasoning

Relying on Deposit Protection Fund v Rosaline Njeri Macharia and the McFoy dictum, the court held that a suit against a non-legal entity is a nullity that cannot be repaired by amendment, because amendment presupposes a valid suit in being. Participation by the Appellant did not cure the defect or deem it a juristic person. Hence the trial judgment was made in a vacuum and had to be set aside.

p. 8
03

Whether estoppel or participation could sustain the suit against the Appellant

Holding

No — participation in proceedings does not warrant treating the Appellant as a juristic body, and counsel conceded estoppel cannot negate a statutory provision.

Reasoning

The Respondent argued the Appellant entered appearance, filed a defence and counterclaim, and participated without protest, so it should be treated as a juristic person. The court rejected this, holding that conduct cannot confer legal capacity. The Respondent's counsel conceded that estoppel does not operate to defeat a statutory provision. No Order 1 Rule 10 application for substitution had been made.

p. 8

Legal principles established

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  • A society registered under the Societies Act, Cap 108 is not a body corporate and cannot sue or be sued in its own name in ordinary civil proceedings; it may only sue or be sued through its registered officials or registered trustees.
  • A suit commenced by or against a non-legal entity is a nullity, and being a nullity it cannot be cured by amendment.
  • An act that is void is incurably bad and every proceeding founded on it collapses.
  • Locus standi and cause of action are distinct concepts.
  • Participation in proceedings does not convert an unincorporated body into a juristic person.

Court orders

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  1. 1.The Appeal be and is hereby allowed
  2. 2.The suit vide Marsabit CMELC Number E003 of 2023 be and is hereby declared a nullity
  3. 3.The Proceedings and the resultant Judgment are equally declared nullities
  4. 4.The Judgment delivered on the 07.11.2025 and the resultant decree arising therefrom be and are hereby set aside
  5. 5.The suit in the Lower court, namely Marsabit CMELC Number E003 of 2023, be and is hereby struck out
  6. 6.Each party shall bear own costs of the suit in the lower court
  7. 7.Each party shall bear costs of the subject Appeal
  8. 8.Parties are at liberty to file appropriate proceedings, if so advised, subject to the provisions of the relevant/applicable law

Authorities

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Legislation

  • Societies ActChapter 108, Laws of Kenya
  • Constitution of Kenya, 2010Articles 22, 258, 260, 40, 159(2)(d)
  • Civil Procedure Rules, 2010Order 1 Rule 9; Order 1 Rule 10; Order 42 Rule 13
  • Evidence ActSections 107 and 109
  • Land Registration ActSection 26(1)(a) & (b)
  • Civil Procedure ActSection 27

Cases cited (8)

  • Law Society of Kenya versus the Commissioner of Lands
    [2000] eKLR
  • Finmax Community Based Group & 3 others v Kericho Technical Institute
    [2021] eKLR - Civil Appeal 120 of 2017
  • Rajesh Pranjivan Chudasama v Sailesh Prajivan Chundasama
    (2014) eKLR
  • Alfred Njau & Others v City Council of Nairobi
  • Eritrea Orthodox Church vs. Wariwax Generation Ltd.
    [2007] eKLR
  • Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) v Rosaline Njeri Macharia & another
    [2016] eKLR - Civil Appeal 64 of 2007
  • D. T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another
    Civil Appeal No. 37 of 1978
  • Benjamin Leonard Mc foy vs. United Africa Company Limited
    [1961] All ER 1169
On appeal from
Chief Magistrate's Court, Marsabit (Marsabit CMELC Number E003 of 2023)
Marsabit CMELC Number E003 of 2023
Jurisdiction invoked
First appeal under Order 42 Rule 13 of the Civil Procedure Rules, 2010 (trial court was the magistrates' court)

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, "Catholic Church Mission v Abduba (Environment and Land Appeal E029 of 2025) [2026] KEELC 2915 (KLR)", Case Analysis (2026). Marsabit Environment and Land Court Appeal (Memorandum of Appeal dated 06.11.2025) from Marsabit CMELC Number E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2915/eng@2026-05-13

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