Diakonia Compassionate Ministry v Samora Mashel Koyo (Sued as Legal Representative of the estate of Julius Koyo Oyoo, Deceased) & 2 others

matter to the Chief Magistrate’s Court at Kisumu, where it was assigned the case reference Kisumu MCELC No. 112 of 2018 (lower court). The 1st Respondent’s suit in the lower court was straightforward. The 1st Respondent averred that he was the administrator of the estate of Julius Koyo Oyoo, deceased, having been appointed as such through a Limited Grant of Letters of Administration dated 8 th April 2015; the deceased died on 16th December 1989; at the date of his death, the deceased was registered as the proprietor of all that parcel of land known as Title No. East Kisumu/Dago/278 (the suit property); the 2 nd Respondent was one of the three widows of the deceased; without obtaining a Grant of Letters of Administration in respect of the estate of the deceased, the 2nd Respondent unlawfully, unprocedurally, illegally and fraudulently caused the suit property to be transferred from the name of the deceased to her name on 7 th February 2003; and that on 18th February 2003, the 2nd Respondent transferred the suit property to the Appellant. The 1 st Respondent sought judgment against the Appellant and the 2 nd and 3rd Respondents jointly and severally for a declaration that the transfer of the suit property from ELCA NO. E055 OF 2024 JUDGMENT Page 2

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the deceased to the 2nd Respondent and subsequently to the Appellant was illegal and unlawful; revocation of the two transfers, surrender of the title by the Appellant and reversion of the property to the name of the deceased; and the costs of the suit. The 2nd Respondent filed a defence dated 7 th March 2023, in which she claimed that the 1st Respondent was not a beneficiary of the deceased’s estate and, as such, had no capacity to challenge the transfer of the suit property to her name and the subsequent sale and transfer of the suit property to the Appellant. The 2 nd Respondent further contended that the deceased had executed the instrument of transfer of the suit property to her name, which she lodged for registration after his death in accordance with procedure and the law. The 2nd Respondent denied that she acquired the suit property illegally, unlawfully, or unprocedurally before selling and transferring it to the Appellant. Lastly, the 2nd Respondent averred that the suit by the 1st Respondent was statute-barred under the Limitation of Actions Act, Chapter 22 Laws of Kenya. ELCA NO. E055 OF 2024 JUDGMENT Page 3

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The Appellant filed a defence dated 23 rd June 2015. The Appellant averred that it could not be sued in its own name and, as such, the 1 st Respondent’s suit against it was incompetent and a non-starter. The Appellant denied that the suit property was transferred to the 2 nd Respondent and subsequently to it unprocedurally, illegally and fraudulently. The Appellant averred that it acquired the suit property lawfully after conducting due diligence to ascertain its ownership. The Appellant averred that it was a bona fide purchaser of the suit property for value without notice of any defect in the title that was held by the seller and that it was in occupation thereof. The Appellant further averred that its title to the property was absolute and indefeasible. The Appellant averred finally that the suit was statutebarred by virtue of the provisions of section 4(2) of the Limitation of Actions Act. The 3rd Respondent filed a defence dated 29th June 2015 in which it denied the 1st Respondent’s claim in its entirety. The 3 rd Respondent denied that it illegally and unprocedurally transferred the suit property to the 2nd Respondent and subsequently to the Appellant. The 3rd Respondent averred in the alternative that, if it did register ELCA NO. E055 OF 2024 JUDGMENT Page 4

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such transfers, the same were registered after the 1 st Respondent, and the Appellant presented all the required documentation. The lower court heard the suit and rendered judgment on 26th June 2024. It framed three issues for determination: whether the suit was time-barred; whether the 2nd Respondent had the capacity to transfer the suit property to the Appellant; and whether the Appellant was an innocent purchaser of the suit property for value without notice. On the first issue, the lower court held that under section 7 of the Limitation of Actions Act, an action to recover land may not be brought more than 12 years after the cause of action accrued. It found that the 2nd Respondent was registered as the proprietor of the suit property on 7th February 2003, while the Appellant was registered as the owner of the property on 18th February 2003. The lower court noted that the suit was filed on 15th May 2015. Counting the 12-year limitation period from 7th February 2003, the lower court found that the suit was filed 11 years and 3 months after the accrual of the cause of action and, as such, was not time-barred. ELCA NO. E055 OF 2024 JUDGMENT Page 5

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On the second issue, the lower court cited sections 45 and 82 of the Law of Succession Act, Chapter 160 of the Laws of Kenya and stated that no immovable property of a deceased can be sold before a Grant of Letters of Administration is issued and confirmed. The court noted that the deceased, Julius Koyo Oyoo, died intestate and that the suit property, which was registered in his name at the time of his death, was registered in the name of the 2 nd Respondent and subsequently the Appellant before a Grant of Letters of Administration in respect of his estate was issued by the court. The lower court found that the registration of the suit property in the name of the 2 nd Respondent after the death of the deceased without a Grant of Letters of Administration was illegal and, as such, the 2 nd Respondent could not transfer a good title to the Appellant. The court found that the title transferred by the 2nd Respondent to the Appellant was tainted with an illegality. On whether the Appellant was an innocent purchaser of the suit property for value without notice, the lower court found that the Appellant did not carry out the necessary due diligence before purchasing the suit property and that if it had done so, it would have ELCA NO. E055 OF 2024 JUDGMENT Page 6

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realised that at the time of entering into a sale agreement with the 2nd Respondent in 2002 to purchase the suit property, the property was registered in the name of Julius Koyo Oyoo, deceased and as such the 2nd Respondent had no title in the property to pass. The court thus found that the Appellant was not an innocent purchaser of the suit property for value without notice. In conclusion, the lower court declared that the registration of the suit property in the Appellant's name was obtained illegally and directed the Land Registrar to cancel the registration and revert the property to the name of the deceased, Julius Koyo Oyoo. The 1 st Respondent was awarded the costs of the suit against the Appellant and the 2 nd Respondent. The Appellant was aggrieved by the lower court's decision and preferred this appeal. In its Memorandum of Appeal dated 25 th July 2024, the Appellant challenged the lower court’s judgment and decree on the following main grounds: 1. The Learned Magistrate, after correctly finding that the limitation period for the recovery of land under section 7 of the Limitation ELCA NO. E055 OF 2024 JUDGMENT Page 7

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of Actions Act was 12 years from the accrual of the cause of action, erred in failing to dismiss the 1 st Respondent’s suit, which was filed out of time after 12 years and 3 months. 2. The Learned Magistrate erred in fact and law in failing to take into account the fact that the 1 st Respondent’s suit was also based on fraud whose limitation period under section 4(2) of the Limitation of Actions Act was 3 years from the date of the accrual of the cause of action. 3. The Learned Magistrate erred in law and fact in failing to consider the pleadings and submissions by the Appellant that the 1st Respondent’s suit was defective and incompetent on the ground that the Appellant was a society, thus unincorporated, and as such could not be sued in its name. 4. The Learned Magistrate erred in failing to consider the pleadings, reappraise the evidence before the court and decide the suit on facts and law. 5. The Learned Magistrate erred in failing to consider various binding authorities relied on by the Appellant in its submissions. ELCA NO. E055 OF 2024 JUDGMENT Page 8

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The Appellant prayed that the appeal be allowed and the decision of the lower court be set aside, and substituted with an order dismissing the 1st Respondent’s suit. The Appellant also prayed for the costs of the lower court suit and the appeal. The appeal was argued by way of written submissions. Submissions The Appellant filed submissions dated 14th October 2025, while the 1st Respondent filed submissions dated 31 st October 2025. Both parties' submissions addressed two issues: whether the lower court suit was time-barred and whether the suit was competent. Analysis and Determination I have considered the pleadings and the proceedings of the lower court, the judgment of the court, the grounds of appeal filed by the Appellant, and the submissions by the Appellant and the 1 st Respondent. This being a first appeal, the court must reconsider and reevaluate the evidence on record and draw its conclusions on the issues that were raised for determination before the lower court. ELCA NO. E055 OF 2024 JUDGMENT Page 9

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In Gitobu Imanyara & 2 Others v. Attorney General [2016] KECA 557 (KLR), the Court of Appeal stated as follows on the mandate of the court on a first appeal: “...this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. See Selle and Another v Associated Motor Boat Company Limited and others [1968] EA 123 and Williamson Diamonds Ltd. V. Brown [1970] E.A.L. As we discharge our mandate of evaluating the evidence placed before the High Court, we keep in mind what the predecessor of this Court said in Peters –vs- Sunday Post Ltd [1958] EA 424. In its own words: “Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the ELCA NO. E055 OF 2024 JUDGMENT Page 10

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weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide.”” In Kenya Ports Authority v. Kuston (Kenya) Limited [2009] 2EA 212, the Court of Appeal stated that: “On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.” In my view, the Appellant’s grounds of appeal raise three issues for determination, namely: 1. Whether the trial magistrate erred in failing to find that the 1 st Respondent’s suit was time-barred under the Limitation of Actions Act; 2. Whether the trial magistrate erred in failing to find that the 1 st Respondent's suit was incompetent as against the Appellant, which had no capacity to sue and be sued; and ELCA NO. E055 OF 2024 JUDGMENT Page 11

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3. Whether the appeal should be allowed. The 1st Respondent’s claim, as set out in his pleadings and prayers, sought the recovery of the suit property on behalf of the deceased’s estate. The 1st Respondent alleged that the property was transferred to the 2nd Respondent and subsequently to the Appellant, unprocedurally, illegally and fraudulently. The 1 st Respondent’s suit was not solely based on fraud. Fraud was merely one of the grounds upon which recovery of the suit property was sought. In these circumstances, the issue of the claim being time-barred under section 4(2) of the Limitation of Actions Act could not arise. As to the limitation period under section 7 of the Limitation of Actions Act, I agree with the Appellant that, since the 1 st Respondent sought the recovery of the suit property from the Appellant, the suit should have been brought within 12 years of the accrual of the cause of action. However, as correctly submitted by the 1 st Respondent, section 26 of the Limitation of Actions Act provides that, where the claim is based on fraud or mistake, the limitation period does not run until the fraud or mistake is discovered. From the evidence on record, the 1 st Respondent discovered the alleged fraudulent transfer of the suit ELCA NO. E055 OF 2024 JUDGMENT Page 12

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property to the 2nd Respondent and the Appellant on 22 nd May 2009. That is the date on which he lodged a caution on the title of the suit property, claiming an interest in the property as a beneficiary. This was followed by the 1st Respondent’s advocates’ letter to the Kisumu Divisional Investigations Officer dated 23 rd October 2010 and a demand letter to the Appellant dated 19 th September 2012. I will therefore take it that the 1 st Respondent discovered the alleged fraud on 22nd May 2009. It is common ground that the lower court suit was filed on 15th May 2015. That was about 6 years after the discovery of the alleged fraud. I agree with the 1 st Respondent that the lower court suit was not time-barred under sections 4(1) and 7 of the Limitation of Actions Act. On the competency of the 1st Respondent’s suit against the Appellant, the following is my view: At the time of filing the lower court suit, the suit property was registered in the name of Diakonia Compassionate Ministry Self Help Group. However, the lower court suit was filed against Diakonia Compassionate Ministry. From the evidence produced before the lower court, Diakonia Compassionate Ministry Self Help Group was a “project” registered ELCA NO. E055 OF 2024 JUDGMENT Page 13

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under the Ministry of Home Affairs, Heritage and Sport, Department of Social Services, Kisumu District. The Appellant’s witness told the lower court that Diakonia Compassionate Ministry Self Help Group was registered as a Society under the Societies Act, Chapter 108 Laws of Kenya, with the name Diakonia Compassionate Ministry on 21st July 2004. This means that, as at 15th May 2015, when the lower court suit was filed, the 1st Respondent could sue only the society, Diakonia Compassionate Ministry. The question raised by the Appellant in the pleadings and submissions before the lower court was whether the 1 st Respondent could sue the society, an unincorporated entity, in its own name. The lower court did not answer this question, which this court has now been called upon to resolve. I do not think the issue is novel. A society registered under the Societies Act does not have legal personality. It can act only through its officials or trustees. Therefore, it cannot sue or be sued in its own name. In Kenya Power & Lighting Co Ltd v. Benzene Holdings Ltd t/a Wyco Paints [2016] eKLR, the Court of Appeal stated as follows: ELCA NO. E055 OF 2024 JUDGMENT Page 14

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“This principle was emphasized as long ago as 1923 by Bankes L.J in Banque Internationale De Commerce (supra), which was subsequently in 1959 cited with approval by Templeton, J of then Supreme Court of Kenya in Fort Hall Bakery Supply Co. V Fredrick Muigai Wangoe (1959) EA 474, who said: “The party seeking to maintain the action is in the eye of our law no party at all but a mere name only, with no legal existence… A non-existent person cannot sue, and once the court is made aware that the plaintiff is non-existent, and therefore incapable of maintaining the action, it cannot allow the action to proceed…… Since a non- existent plaintiff can neither pay nor receive costs there can be no order as to costs”. In Finmax Community Based Group & 3 others v. Kericho Technical Institute [2021] KECA 962 (KLR), the Court of Appeal stated as follows: “However, the question today is not whether unincorporated entities may commence action or how actions against them may be commenced, but rather, the manner of commencing proceedings. It is equally also settled that they cannot maintain an action or actions brought against them in their names. Proceedings on their behalf or against them can only ELCA NO. E055 OF 2024 JUDGMENT Page 15

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be through the registered officials, whose particulars, names and capacity must clearly be indicated in the suit. See Grace Mwenda Munjuri vs. Trustee of the Agricultural Society of Kenya [2014] eKLR. In this appeal, the 1st appellant, being an unincorporated organization, had no capacity to be sued in its own name. The respondent could only institute the suit as against named officials.” In Nyaata v. Evangelical Lutheran Church in Kenya (ELCK), being sued through its Officials namely Joseph Ochola, Muchiri Kariuki & Benjamin [2023] KEELRC 250 (KLR) Lemiso (Cause (2 February 2023) 732 of 2019) (Ruling), the Employment and Labour Relations Court reviewed a number of cases on this issue. The Court stated as follows: “19. In Kituo Cha Sheria v John Ndirangu Kariuki & another [2013] eKLR, the High Court stated as follows:- “As a general rule, unincorporated legal persons including societies, clubs and business-names can only bring proceedings through their registered or elected officials or in their proprietor’s names.’’ 20. In Pius Watene D Maina v Director General Kenya Urban Roads Authority & 5 others [2020] eKLR, the Land and ELCA NO. E055 OF 2024 JUDGMENT Page 16

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Environment Court expressed itself on the matter as follows:-“... the capacity to sue or be sued on behalf of the church rests with the trustees.’’ 21. In African Orthodox Church of Kenya v Charles Omuroka & another [2014] eKLR, the High Court observed as follows:“There is no doubt therefore, that both the Plaintiff 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 officials in a representative capacity.” 22. In Living Water Church International v City Council of Nairobi [2008] eKLR, the High Court observed as follows:“One may ask that, if the society, has no legal status to sue or be sued in its name, then how can such a society move the court, for vindication of its rights. The answer is simple, it moves to vindicate its rights, through its registered officials, mandated to take action on its behalf as provided for in its constituting or creating instrument namely the, “constitution”.’’ 23. In Trustees Kenya Redeemed Church & Anor v Samuel M’Obiya & 5 others [2011] eKLR the High Court observed as ELCA NO. E055 OF 2024 JUDGMENT Page 17

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follows:- “Indeed, it is trite that a society registered under the Societies Act, including a religious organization, can only sue or be sued through its officials.’’… 26. What emerges from the above decisions is that courts agree that suits by or against unincorporated bodies must be filed through their recognized officials. However, there is no agreement that these officials must be registered or that they must be trustees of the organizations.” I have said enough to show that the Appellant was not properly sued. The suit against it should have been brought against its officials or its trustees. I agree with the Appellant that the suit against it was incompetent. Conclusion In conclusion, the appeal succeeds on that one ground. The judgment and decree of the lower court delivered by Hon. F.Rashid, PM on 26 th June 2024, is set aside as against the Appellant and substituted with an order striking out the 1st Respondent’s suit in the lower court against the Appellant. For the avoidance of doubt, the orders issued by the lower court declaring that the Appellant acquired the land parcel, Title No. East Kisumu/Dago/278 illegally and directing the ELCA NO. E055 OF 2024 JUDGMENT Page 18

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Land Registrar to cancel the title and revert the property to the name of Julius Koyo, deceased, are set aside. In view of the status of the Appellant, each party shall bear its costs of the lower court suit and the appeal. Written and signed at Mombasa by S. OKONG’O JUDGE Delivered, dated and countersigned at Kisumu on this day of September 28 th 2026 E.K.WABWOTO JUDGE Judgment delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of: N/A for the Appellant N/A for the 1st Respondent N/A for the 2nd Respondent N/A for the 3rd Respondent Joanne Omondi; Court Assistant ELCA NO. E055 OF 2024 JUDGMENT Page 19

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