Mbari ya Maina Self Help Group v National Land Commission (Environment and Land Miscellaneous Case E019 of 2026) [2026] KEELC 5151 (KLR)

that under Article 22 of the Constitution, every person has the right to institute proceedings whether incorporated or unincorporated. He submitted that the applicant is the representative body of the descendants of Maina wa Kamenwa, and it is properly constituted to bring proceedings to the current historical injustice committed against their ancestors and family to an extent. He stated that this position is further buttressed by Section 15 of the National Land Commission Act. 3. In response, Ms. Gardale, the learned counsel for the respondent submitted that there is no evidence to show that Mr. Gikonyo has the authority to swear the affidavit on behalf of the applicant. She submitted that there exists no resolution, minutes of any meeting, any written executed authority by the members, resolution authorising the filing of the present proceedings, authority permitting the deponent of the said affidavit on behalf of the members of the self-help group. She relied on the case of Research International East Africa Vs. Julius Arisi & 213 Others [2007] eKLR, where it was held that where one purports to sue on behalf of others, authority from those others must be properly demonstrated. 2|P a g e R U L I N G E L C L M I S C N O . O N 3 1 S T J U L Y 2 0 2 6 . E 0 1 9 O F 2 0 2 6 D E L I V E R E D V I R T U A L L Y

page 2 of 9

4. Secondly, the learned counsel submitted that relying on the participation before the respondent does not confer an automatic standing. Further, that no material evidence has been placed before this court demonstrating the identity of all the persons represented before the respondent and that these persons continue to authorise those proceedings. 5. In rejoinder, Mr. Otieno submitted that the authority of the applicant is easily distinguished as its claim is anchored in the Constitution and the National Land Commission Act which are legal instruments that came into place after the determination of the case had taken place. 6. I have considered the rival arguments by the respective counsel and bearing in mind that the directions were based on the court’s observations of the pleadings, this court is of the view that the applicant has no locus standi to institute these proceedings. 7. I am persuaded to rely on the case of County Government of Narok v Ntutu & 3 others [2026] KECA 5 (KLR), where the court of appeal stated as follows:- 3|P a g e R U L I N G E L C L M I S C N O . O N 3 1 S T J U L Y 2 0 2 6 . E 0 1 9 O F 2 0 2 6 D E L I V E R E D V I R T U A L L Y

page 3 of 9

“22. At common law, an unincorporated association cannot sue nor be sued in its own name but only in the names of the individual members. (See Michigan Law Review, Vol. 20, No. 2 (Dec., 1921), pp. 245-246). Brotherhood of Green (Ala., [I929], In Grand Locomotive 89, International Engineers an vs. unincorporated association was sued in its own name. It was held that even though there was a general appearance by the defendant, the court did not get jurisdiction because a "suable party" is necessary to jurisdiction. 23. The above decision confirms that the jurisprudence that an unincorporated entity lacks the legal capacity to sue stems primarily from the common law principle that it is not a distinct legal person or entity separate from its individual members. 26. While the rigid common law position on the question of the capacity of an unregistered entity to sue still holds sway, the law is not static. Modern developments including the emergence of liberal, progressive and transformative constitutions have elevated the right to access justice to a high pedestal. For example, a person as defined under article 260 of the Constitution includes a company, association incorporated or other or body of persons unincorporated. A whether perusal of the Constitution of Kenya Review Commission Final 4|P a g e R U L I N G E L C L M I S C N O . O N 3 1 S T J U L Y 2 0 2 6 . E 0 1 9 O F 2 0 2 6 D E L I V E R E D V I R T U A L L Y

page 4 of 9

Report shows that it was the intention of the drafters of the Constitution to have a properly functioning judicial system that is accessible to all persons to ensure and promote equality of all persons before the law. 27. The rigid modified by common statute law or position judicial has been interpretation, particularly in public law matters (like judicial review and constitutional petitions) where the focus is on "sufficient interest" rather than private legal rights. However, traditional rule in that private an law claims, unincorporated the entity lacks locus standi (legal standing) to sue in its own name remains influential unless the Constitution or legislation provides otherwise. 28. However, a distinction must be drawn between public law and private law litigation. In private law, the individual has to be able to show that they have a legal right which has been infringed, therefore it is fundamental that they have legal capacity to sue. In contrast the critical question in public law litigation is whether the claimant is a person aggrieved or has standing to challenge, which is not a test of legal capacity but rather one of sufficient interest in the decision. In other words, the person or entity suing is invoking the powers of the Court to exercise its supervisory jurisdiction to quash, curb or correct decision(s) of bodies subject to public 5|P a g e law. The personal R U L I N G E L C L M I S C N O . O N 3 1 S T J U L Y 2 0 2 6 . E 0 1 9 O F rights 2 0 2 6 of individual D E L I V E R E D V I R T U A L L Y

page 5 of 9

applicants, must not be in play. (See Turner J. in R. vs. Traffic Commissioner for the North Western Traffic Area, ex parte Brake [1996] COD 248). 29.We think we have expressed our views in detail and laid down sufficient reasons to arrive at the conclusion that the present application has no legal foundation. Before the trial court was a civil suit relating to a land ownership dispute. We are not persuaded that the applicant has demonstrated that it possesses the legal capacity for this court to admit it to participate in this appeal. The upshot of the foregoing is that, Maasai Mara Disables Community Self Help Group has no capacity to institute action in its own name.” 8. Also, in the case of Kipsiwo Community Self Help Group v Attorney General & 6 others [2013] KEELC 63 (KLR), Sila J (as he then was) stated as follows:“I think the issue is not really whether unincorporated entities may commence action but the manner in which unincorporated entities may commence proceedings. A number of individuals may come together and form an identifiable group. They can bring action as the group, but it does not mean, that the group is now vested with legal capacity to sue and to be sued. In such instance, the members of the group have to bring action in their own names, as members of the group, or a few can 6|P a g e R U L I N G E L C L M I S C N O . O N 3 1 S T J U L Y 2 0 2 6 . E 0 1 9 O F 2 0 2 6 D E L I V E R E D V I R T U A L L Y

page 6 of 9

bring action on behalf of the other members of the group, in the nature of a representative action. Unincorporated entities have no legal capacity and cannot therefore sue in their own names. They can however sue through an entity with legal capacity. Just because the Constitution allows unincorporated bodies to sue, does not vest such bodies with legal capacity, and such bodies do not become persons in law, and cannot be the litigants or sue in their own standing. They still have to use the agency of a person recognized in law as having capacity to sue and to be sued. ….. 42. Self Help Groups having no legal personality, cannot therefore institute proceedings in their own name. 43. Kipsiwo Self Help Group had no capacity to institute action in its own name. A person recognized in law had to sue on behalf of members of Kipsiwo Self Help Group and such members had to be named and identified with precision. The person bringing action has to demonstrate that he has permission to bring the action on behalf of the members of the group, or on behalf of the people he seeks to represent, if it is a representative suit. The importance of this, is so as to recognize the persons who seek legal redress, and so that orders are not issued in favour or against people who cannot be precisely identified. This may look minor, but it is 7|P a g e R U L I N G E L C L M I S C N O . O N 3 1 S T J U L Y 2 0 2 6 . E 0 1 9 O F 2 0 2 6 D E L I V E R E D V I R T U A L L Y

page 7 of 9

extremely significant. In litigation, rights and duties will be imposed on the litigants. If the court does not know who the litigants are, then it becomes impossible for the court to enforce its own orders, for it will never be clear, who the beneficiary of the order was, or who had obligation to obey or enforce such order.” 9. The above authorities attest that a self-help group ought to have representatives institute the suit on behalf of its members on the basis that it is an unincorporated body thus is incapable of suing in its own name. The same principle enunciated in the above authorities also apply in this case. 10. It is my finding that the applicant has no capacity to sue in its own name. Thus, the notice of motion dated 19 th January 2026 is hereby struck out with no orders as to costs. The applicant is at liberty to institute a fresh application. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY ON THIS 4TH DAY OF AUGUST, 2026. HON. MBOGO C.G. JUDGE 04/08/2026. In the presence of: 8|P a g e R U L I N G E L C L M I S C N O . O N 3 1 S T J U L Y 2 0 2 6 . E 0 1 9 O F 2 0 2 6 D E L I V E R E D V I R T U A L L Y

page 8 of 9

Ms. Benson Agunga - Court assistant Ms. Chanimbaga holding brief for Mr. Willis Otieno for the Applicant Ms. Mwanyika for the Respondent 9|P a g e R U L I N G E L C L M I S C N O . O N 3 1 S T J U L Y 2 0 2 6 . E 0 1 9 O F 2 0 2 6 D E L I V E R E D V I R T U A L L Y

page 9 of 9