Ingenious Concepts Group Limited v Parish Council Ethiopian Orthodox Tewahidu Church

d. That in the event the Court is minded to make an order as to security for costs, the Applicant be granted leave to deposit an insurance bond or a bank guarantee as security in lieu of cash deposit. e. That the Ruling dated 16th May 2024 be quashed and the suit in the subordinate Court namely MCELC No. E091 of 2024 be reinstated. f. That such other and/or further orders be made as this Honorable Court may deem t and just. 2. The Applicants based their application on a twenty (20) paragraphed Supporting Adavit of the Appellant/Applicant together with copies of documents annexed thereto and marked as “BMKJ 1” to “BMKJ 4” alongside grounds (a) to (h) set out on it’s face. In a nutshell, the Applicants aver that they have an arguable appeal led without inordinate delay, inter alia, that there should be a temporary injunction granted so that the appeal is not rendered nugatory. That the trial Court rendered a Ruling on 16/05/2024 which provoked the instant appeal which may be rendered nugatory unless the orders sought in the application are granted. 3. By a thirty-eight (38) paragraphed Replying Adavit sworn on 30/05/2024, the Respondent through Ramadhani Mukira & Company Advocates, termed the application incompetent, an abuse of the due process and ought to be dismissed with costs. The Respondent deposed that in delivering his Ruling in the lower Court Hon A. Mukenga, Principal Magistrate, on 16/05/2024 dismissed the entire suit by stating thus: “ 26. In its Replying Adavit to the application, the Plainti did not dispute that the Defendant herein is a church, and a society for that matter. The Plainti therefore by implication admitted that the Defendant as sued lacks capacity to be sued. However, the Plainti did not oer or suggest in its reply and submissions to eect an amendment to the Plaint and thus sue the right parties. The Court, as an independent arbiter cannot order an amendment suo motto. 27. While striking out of pleadings has severally been termed as an act that should only be applied sparingly and in the clearest of cases, the issue raised of capacity of a party to be sued goes to the core of the matter, and once established that the party sued has no capacity, then it would amount to a waste of the Courts time to proceed with the suit as it is. 39. The upshot is that the suit herein is struck out with costs to the Defendant.” 4. The Respondent also stated that there is no contract in existence since it commenced on 20/08/2020 and expired on 28/08/2020 and therefore there is absolutely no claim by the Appellant/Applicant to the suit property since there is not contract between the parties. 5. The Court directed the parties to le written submissions. The Appellant/Applicant led their submissions dated 13/08/2024. From my perusal of the Court record, I did not chance upon the submissions of the Respondent. I have read and considered the submissions led. Determination 6. I have reviewed the pleadings that were led before the Court, I have also considered the Ruling from the trial Court and the pleadings led therein. I have narrowed down on two issues:i. Whether the suit led before the Magistrate’s Court is competent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18684/eng@2025-10-23 2

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ii. Whether the application before this Court is competent noting that the Respondent is a Society sued in its own name. 7. On the 1st issue, I have read the Ruling of Hon A. Mukenga, Principal Magistrate, and noted that on 16/05/2024 he dismissed not just the application led before him but entire suit. At paragraph 3 above I have quoted extensively from the Ruling. 8. I wish to comment briey on the position taken by the Honorable Magistrate and state that it is evident that the suit was led against the Respondent herein who was described through the Authority to Act being annexure “BAM 1” to the Replying Adavit led by the Chairman Henok Yigezu Shfera, Secretary Akiilu Gebereselasse Berhe and Treasurer Genet Getachew Tiruneh dated 29/05/2024 as the Ethiopian Orthodox (Tewahidu) Church, Kenyan Branch. 9. This therefore means that the Respondent is a Christian Organization duly registered as an Association/Society under the Societies Act, Cap 108 Laws of Kenya. Since this issue was canvassed by the Subordinate Court then the Applicant/Appellant is completely aware that he is suing an entity that in law does not exist. 10. It follows that, where a suit is to be commenced by and or against an Organization/Association registered under the Societies Act Cap 108, Laws of Kenya, then such a suit can only be commenced by and or against the registered trustees/ocials of the Society as was rightly observed by the Hon Principal Magistrate. 11. In Trustees Kenya Redeemed Church & Another v Samuel M’Obuya Morara & 5 Others [2011] eKLR, it was held that it is trite law that a Society under the Societies Act is not a legal person with capacity to sue or be sued. A Society can only sue or be sued through its due oce holders. 12. In African Orthodox Church of Kenya v Charles Omuroka & Another [2014] eKLR the Court held that; “ There is no doubt therefore, that both the Plainti and the 2nd Defendant as societies or Associations registered under the Societies Act are not legal entities capable of suing and being sued in their own names. They have no legal capacity to institute proceedings in any Court in their own names and cannot maintain such proceedings. They can only sue through Trustees, if they have one or in the names of their ocials in a representative capacity.” 13. Further in Eritrea Orthodox Church v Wariwax Generation Ltd. [2007] eKLR, in which the Plainti was a religious un-incorporated organization registered under the Societies Act, Onyancha J held that; “ The institution of proceedings by the persons who form the society without complying with rules governing representative suits renders the suit null and void.” 14. Finally in John Ottenyo Amwayi & Two Others –v- Rev. George Abura & Two Others – Civil Appeal No. 6339/1990 Bosire, J. (as he then was) held as follows: “ The Societies Act does not contain Provisions with regard to the presentation and prosecution of suits by or against the unincorporated societies. It would appear to me that the legislature did not intend that suits be brought by or against those societies in their own names.” 15. The Respondent in the application before me, is a religious organization registered under the Societies Act. Societies do not have capacity to sue or be sued in their own names but through its registered https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18684/eng@2025-10-23 3

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trustees or ocials. As already decreed by the Principal Magistrate that once it is established that the party suing or being sued lacks capacity then it is a waste of Court’s time. The Parish Council Ethiopian Orthodox Tewahidu Church has no capacity to be sued. 16. The Notice of Motion Application dated 21/05/2024 herein is therefore incurably defective ab initio. 17. In the circumstances and based on the foregoing, it is my position that since the suit that was led before the Subordinate Court was void then there was no suit that could be presided over by the Honorable Magistrate and so all the processes that took place are a nullity. It is as if nothing took place at all. 18. In addressing the issue of void processes in Court Lord Denning MR in the case of Benjamin Leonard Mcfoy v United Africa (1961) All ER 1169 stated as follows: “ If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.” 19. Given the foregoing, I decree as hereunder:a. The Notice of Motion dated 21/05/2024 is hereby struck out. b. All actions arising from the suit that was struck out on 16/05/2024 by the Subordinate Court are a nullity. c. The Notice of Motion Application dated 31/05/2024 is a nullity. d. Each Party to bear their own costs. These are the Orders of the Court. DATED, SIGNED AND DELIVERED AT THIKA THROUGH MICROSOFT TEAMS ON THIS 23RD DAY OF OCTOBER, 2025. .......................... MOGENI J JUDGE In the presence of:Mr. Karani for the Appellant/Applicant Mr. Abubakar for the Respondent Mr. Melita – Court Assistant .......................... MOGENI J JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18684/eng@2025-10-23 4

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