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ELCPartially AllowedLand Case Appeal E022 of 2024· [2026] KEELC 3546 (KLR)

Redeemed Gospel Church v Omae (Land Case Appeal E022 of 2024) [2026] KEELC 3546 (KLR)

Environment and Land Court
11 June 2026
1,665 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan church society won its appeal because a registered society cannot be sued in its own name—only through its officials or trustees.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kisii against a ruling of the trial magistrate delivered on 22 May 2024 in MCELC E029 of 2023. The trial magistrate had upheld the 1st Respondent's preliminary objection that the Appellant's representative, Erick Mosiria Ochieng, lacked capacity because the Authority to Act was filed after the memo of appearance and statement of defence, and struck out the Appellant's application dated 16 November 2023 and statement of defence dated 14 November 2023 with thrown away costs of Kshs 10,000, granting leave to regularise. A. Omollo J identified three issues: whether the preliminary objection was a pure point of law; whether the trial court failed to address the capacity in which the Appellant was sued; and whether the costs award was erroneous. The court held that capacity to sign pleadings is a question of law ascertainable from the record, so the first limb was properly upheld. However, applying sections 2 and 41 of the Societies Act, Cap 108, and the Mitikenda and Free Pentecostal Fellowship authorities, the court held that a society registered under that Act lacks legal personality and must sue or be sued through its officials; the trial court ought to have addressed that issue wholesomely, and both parties' objections had merit. On costs, the discretion was lawful since costs follow the events, but as both parties succeeded, each was to bear its own costs of the lower court matter. The appeal was allowed, the trial ruling varied accordingly, the suit against the appellant in its own name struck out with leave to file afresh through officials or trustees, and the appellant awarded costs of the appeal.

Key legal issues

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01

Whether the 1st Respondent's preliminary objection on the timing of the Authority to Act was a pure point of law

Holding

Yes; capacity to sign pleadings is a question of law and the timing of filing the authority was ascertainable from the record without evidence

Reasoning

The court held that since the preliminary objection was anchored on when the authority to act was filed, no evidence was required; the dates were on the record. The fact that the authority was filed after the pleadings meant the representative lacked capacity at the date of filing, so the magistrate did not err in upholding that limb.

p. 2
02

Whether the trial court erred in failing to address the capacity in which the Appellant (a society) was sued

Holding

Yes; the court should have addressed the issue of capacity wholesomely, as the Appellant remained a party despite striking out of pleadings

Reasoning

The issue of capacity was raised in both the statement of defence and the application signed by Erick Mosiria Ochieng. Striking out those pleadings did not remove the Appellant as a party. Applying the Societies Act and cited authorities, a society must be sued through its officials, so both parties' objections had merit and the suit against the appellant in its own name was defective.

p. 3
03

Whether the award of thrown away costs of Kshs 10,000 was erroneous

Holding

The magistrate's discretion was lawful as costs follow the events, but since both parties succeeded, each party was ordered to bear its respective costs

Reasoning

Costs follow the events under section 27 of the Civil Procedure Act and the magistrate had found in favour of the 1st Respondent, so the award was within the law. However, having found that both parties were successful, the proper order was that each party bears its respective costs of the preliminary objection and application.

p. 4

Legal principles established

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  • A society registered under the Societies Act Cap 108 is not a legal person and can only sue or be sued through its appointed representative or principal office-bearers
  • Registration under the Societies Act does not confer corporate or separate legal personality
  • A suit by or against unincorporated bodies must be brought in the names of, or against, all members or in a representative capacity
  • Costs follow the events under section 27 of the Civil Procedure Act, and appellate interference with costs is limited to instances where discretion was not exercised judiciously

Court orders

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  1. 1.The appeal is allowed
  2. 2.The ruling of the trial magistrate is varied to read that the 1st Respondent's preliminary objection dated 8/1/2024 remains upheld
  3. 3.The Appellant's preliminary objection on lack of capacity to be sued in its own name is upheld
  4. 4.The suit against the appellant in its own name is ordered struck out with leave to the 1st Respondent to file a suit against the Appellant through the names of its official/trustees
  5. 5.Each party to bear the costs of MCELC E029/2023
  6. 6.The Appellant is awarded costs of the appeal

Authorities

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Legislation

  • Societies ActCap 108, section 2 (interpretation)
  • Societies Actsection 41
  • Civil Procedure Actsection 27
  • Civil Procedure RulesOrder 1 rule 8
  • Companies ActCap 486

Cases cited (2)

  • Mitikenda Residents Association v. Njuguna & 3 Others
    ELC 624 of 2017
  • Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank
    Nairobi HCCC No. 4116 of 1992
On appeal from
Magistrates' Court (Environment and Land)
MCELC E029 of 2023
Jurisdiction invoked
First appeal from the Magistrates' Court (statutory appeal; specific provision not cited in the judgment)

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, "Redeemed Gospel Church v Omae (Land Case Appeal E022 of 2024) [2026] KEELC 3546 (KLR)", Case Analysis (2026). Land Case Appeal E022 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3546/eng@2026-06-11

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