Diakonia Compassionate Ministry v Samora Mashel Koyo (Sued as Legal Representative of the estate of Julius Koyo Oyoo, Deceased) & 2 others
The bottom line
#A Kenyan court struck out a land claim against a church society because societies registered under the Societies Act cannot be sued in their own name.
What this practically means
#Executive summary
#Key legal issues
#Whether the suit was time-barred
The suit was not time-barred. Though recovery of land must be brought within 12 years under section 7, the claim was grounded on fraud, so section 26 postponed limitation until discovery on 22nd May 2009; the suit filed 15th May 2015 was about 6 years after discovery.
The court held the claim was not solely based on fraud; fraud was one ground for recovery, so section 4(2) did not apply. Accepting the Appellant's submission that section 7 applied to recovery of land, the court nonetheless found section 26 applicable because the claim alleged fraud. The 1st Respondent lodged a caution on 22nd May 2009, followed by a letter to the investigations officer and a demand letter, evidencing discovery of the alleged fraud on that date.
Whether the suit against the Appellant was competent
The suit was incompetent. The Appellant, a society registered under the Societies Act, has no legal personality and could not be sued in its own name; the suit should have been brought against its officials or trustees.
The property was registered in the name of Diakonia Compassionate Ministry Self Help Group, registered as a society under the name Diakonia Compassionate Ministry on 21st July 2004. As at filing, only the society could be sued. Relying on Court of Appeal and other authorities, the court held that an unincorporated society cannot sue or be sued in its own name and proceedings must be through registered officials or trustees. The lower court had failed to determine this question.
Legal principles established
#- A society registered under the Societies Act has no legal personality and cannot sue or be sued in its own name; suits by or against it must be brought through its officials or trustees
- Where a claim is based on fraud or mistake, the limitation period does not run until the fraud or mistake is discovered (section 26, Limitation of Actions Act)
Court orders
#- 1.The judgment and decree of the lower court delivered by Hon. F. Rashid, PM on 26th June 2024 is set aside as against the Appellant
- 2.The 1st Respondent's suit in the lower court against the Appellant is struck out
- 3.The lower court orders declaring that the Appellant acquired Title No. East Kisumu/Dago/278 illegally and directing the Land Registrar to cancel the title and revert the property to the name of Julius Koyo, deceased, are set aside
- 4.Each party shall bear its costs of the lower court suit and the appeal
- On appeal from
- Chief Magistrate's Court at Kisumu
- Kisumu CMCELC No. 112 of 2018
- Jurisdiction invoked
- First appeal to the Environment and Land Court from the Chief Magistrate's Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Diakonia Compassionate Ministry v Samora Mashel Koyo (Sued as Legal Representative of the estate of Julius Koyo Oyoo, Deceased) & 2 others", Case Analysis (2026). ELC Appeal No. E055 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5810/eng@2026-09-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.