Kibe v Registered Trustees of Malallani Mosque, Kwale County & 3 others (Land Case E061 of 2024) [2026] KEELC 3039 (KLR)
The bottom line
#A Kenyan land court dismissed a suit because the defendants were registered societies that legally cannot be sued in their own names.
What this practically means
#Executive summary
#Key legal issues
#Whether the 2nd Defendant's preliminary objection raising lack of legal capacity (locus standi) to be sued is a pure point of law
Yes. The objection that a registered welfare association under the Societies Act lacks capacity to be sued in its own name is a noble legal question going to the root of the matter and satisfies the Mukisa Biscuit test; it need not rest on facts to be ascertained since the Plaintiff's own pleadings describe the 2nd Defendant as a registered welfare association under the Societies Act
The court restated the classic definitions of a preliminary objection from Mukisa Biscuit, Nitin Properties, Karata Ernest and Aviation & Allied Workers Union, emphasising that the objection must stem from the pleadings and assume the correctness of pleaded facts. Because the Plaint itself pleads that the 1st and 2nd Defendants are registered societies under the Societies Act, the issue of capacity is a pure point of law arising by clear implication from the pleadings, capable of disposing of the suit without ascertaining any facts.
Whether a welfare association registered under the Societies Act, Cap. 108 can be sued in its own name
No. Such an association is not a body corporate with perpetual succession and lacks legal personality to be sued in its own name; the suit against it is incompetent and a nullity. Article 260 of the Constitution notwithstanding, an unincorporated association must be sued through its officials or members
Relying on Trustees Kenya Redeemed Church v Samuel M'Obiya and Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank, the court held that a society under the Societies Act is not a legal person with capacity to sue or be sued except through its due officers, and that at common law suits against unincorporated bodies must be brought against all members or in a representative capacity under Order 1 rule 8. The court also invoked locus standi jurisprudence, holding that a party without locus standi cannot be sued, and that suing parties lacking capacity was an erroneous short cut.
Whether costs should follow the event
Yes. Costs are discretionary and follow the event under Section 27(1) of the Civil Procedure Act; having succeeded on the preliminary objection, the 2nd Defendant is entitled to costs of the suit, the applications and the preliminary objection
The court applied Section 27(1) of the Civil Procedure Act and the authorities of Jasbir Rai Singh v Tarchalans Singh and Cecilia Karuru Ngayu v Barclays Bank of Kenya, holding that costs follow the event and are meant to compensate the successful party rather than penalise the losing party. Since the preliminary objection succeeded on the fundamental threshold of locus standi, the 2nd Defendant was entitled to costs.
Legal principles established
#- A preliminary objection must be raised on a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where any fact has to be ascertained or where the exercise of judicial discretion is sought
- A society registered under the Societies Act, Cap. 108 is not a body corporate and lacks legal capacity to sue or be sued in its own name; suits by or against unincorporated bodies must be brought in the names of the members or through their officials
Court orders
#- 1.The Preliminary Objection dated 29th April 2025 raised by the 2nd Defendant is found to have merit
- 2.A finding that the 1st Defendant, Registered Trustees Of Malalani Mosque, Kwale County and 2nd Defendant, Gandakala Development Welfare Association, being a welfare association registered under the Societies Act, Cap. 108 lack legal capacity to sue or be sued in their own name, and the suit as instituted against them is incompetent in law – both substance and form
- 3.The suit instituted through the Plaint is dismissed as it is incompetent on grounds of legal capacity ('Locus Standi') to sue and be sued in law whatsoever
- 4.The Plaintiff is advised, subject to the Limitation of Actions Act Cap. 22, to consider filing a fresh suit against the proper parties
- 5.Costs of the suit, the applications and the Preliminary Objection awarded to the 2nd Defendant
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution; the judgment does not expressly cite an enabling provision
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kibe v Registered Trustees of Malallani Mosque, Kwale County & 3 others (Land Case E061 of 2024) [2026] KEELC 3039 (KLR)", Case Analysis (2026). Not stated in the judgment (Plaint dated 24th September 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3039/eng@2026-04-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.