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ELCStruck OutOriginating Summons dated 12th March 2026· [2026] KEELC 5144 (KLR)

Mwakindo (Suing as General Overseer and National Chairman of Evangelistic Saints Assembly Ministry) v Mwambire (Sued on Behalf of Wohemi) & another (Environment and Land Miscellaneous Application E006 of 2026) (Environment and Land) [2026] KEELC 5144 (KLR)

Environment and Land Court
31 July 2026
4,659 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant, Pastor Hebron Maghanga Mwakindo, sued as General Overseer and National Chairman of Evangelistic Saints Assembly Ministry (ESAM), invoking Section 56 of the Trustees Act and Order 37 Rule 1 of the Civil Procedure Rules. He sought application of the cy-près doctrine over Plot No. 1216, Lower Msambweni, Voi, allegedly donated by the 2nd Respondent to the 1st Respondent for church purposes, and orders compelling its transfer to him for continued worship, plus demolition of a bedroom the 1st Respondent built on the premises. The Respondents did not participate despite service; the suit proceeded by written submissions. The court framed three issues: locus standi, entitlement to reliefs, and costs. On standing, the court held the Applicant produced no resolution or authority from ESAM authorising the representative suit; a membership card and practising licence were insufficient under Order 1 Rule 8 and Section 41 of the Societies Act. On the merits, the foundational donation agreement dated 9th June/July 2015 was never produced, so the terms of any charitable trust, and the nexus between the Applicant and the purported donor, could not be ascertained. Applying the Fryda exposition of cy-près, the court found no evidential basis to invoke the doctrine and no legal or beneficial interest in the Applicant. The originating summons was struck out with costs in the summons.

Key legal issues

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01

Locus standi of the Applicant to institute a representative suit on behalf of a society

Holding

The Applicant lacked locus standi; he produced no resolution or authority from ESAM authorising the suit, and a membership card and practising licence did not confer standing

Reasoning

Suing as General Overseer and National Chairman of ESAM, the Applicant bore the burden of proving authority. Order 1 Rule 8 requires authorisation by members for representative suits, and Section 41 of the Societies Act requires court-satisfied written appointment. No authority to plead, resolutions, or documentary mandate were produced, so capacity was not established.

p. 6
02

Entitlement to cy-près relief

Holding

Reliefs refused; the donation agreement of 9th July 2015 was not produced, so the terms and existence of a charitable trust could not be ascertained, and the Applicant showed no legal or beneficial interest in the trust

Reasoning

Section 56 of the Trustees Act permits applications by trustees or persons beneficially interested. The Applicant's relationship was contractual with the 1st Respondent via lease; the nexus between the Applicant and the purported donor was not established, and without the founding instrument the court could not find a failed charitable purpose warranting cy-près application.

p. 10
03

Costs

Holding

Costs of the summons awarded against the Applicant, the suit having been struck out

Reasoning

Having found no locus standi and no evidential basis for the summons, the court struck it out with costs in the summons, exercising discretion under Section 27(1) of the Civil Procedure Act as cited by the Applicant.

p. 10

Legal principles established

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  • Locus standi concerns the sufficiency and directness of a litigant's interest in proceedings and must be established first in litigation
  • A representative suit on behalf of members requires authority or resolution authorising the litigant; a membership card does not confer standing
  • The cy-près doctrine applies only where the original charitable purpose has failed and the donor manifested a general charitable intention, on an evidential foundation

Court orders

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  1. 1.A declaration that the Applicant has no locus standi to institute the originating summons against the respondents.
  2. 2.The originating summons dated 12.3.2026 is struck out with costs in the summons.

Authorities

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Legislation

  • Trustee Act (CAP 167)Section 56
  • Civil Procedure ActSections 3A, 37(1), 63(e), 27(1)
  • Civil Procedure Rules, 2010Order 51 Rule 1; Order 37 Rule 1; Order 1 Rule 8; Order 5 Rule 22(c)
  • Societies ActSections 2 and 41
  • Constitution of Kenya, 2010Articles 22 and 260
  • Land Registration Act, 2012Sections 25 and 28
  • Registered Land Act (repealed)Section 28

Cases cited (12)

  • William Charles Fryda v Assumption Sisters of Nairobi Registered Trustees & Another
    [2017] KEELC 1608 (KLR)
  • Constance Tunda Vuko v Chairman and Secretary, Peace of Elshadai Temple & 2 Others
    [2021] eKLR
  • Rugiri v Kinuthia & 3 others
    [2024] KECA 1601 (KLR)
  • Republic v Registrar of Societies & another; Kenya International Freight & Warehousing Association (Nairobi Branch) (Ex parte)
    [2025] KEHC 4789 (KLR)
  • IRC vs Pemsel
    (1891) AC 531
  • Royal College of Surgeons of England vs National Provincial Bank Ltd
    (1952) 1 All ER 984
  • Council of Law Reporting vs Attorney General
    (1973) All ER 1029
  • Re Robinson, Besant vs German Reich
    (1931) Ch 122
  • Re Slevin
    (1981) 2 Ch 236
  • Re Tacon
    (1958) Ch 477
  • Re Woodhams
    (1981) 1 WLR 493
  • Re Avenon's Charity
    (1913) 2 Ch 261
Jurisdiction invoked
Section 56 of the Trustee Act (CAP 167); Sections 3A, 37(1), 63(e) of the Civil Procedure Act; Order 51 Rule 1 and Order 37 Rule 1 of the Civil Procedure Rules, 2010

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, "Mwakindo (Suing as General Overseer and National Chairman of Evangelistic Saints Assembly Ministry) v Mwambire (Sued on Behalf of Wohemi) & another (Environment and Land Miscellaneous Application E006 of 2026)  (Environment and Land) [2026] KEELC 5144 (KLR)", Case Analysis (2026). Originating Summons dated 12th March 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5144/eng@2026-07-31

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