Taireni Association of Mijikenda v Harsahard Purshottam Patel & 3 Others

1. The Petitioner filed this Petition pursuant to Article 258 of the Constitution of Kenya seeking inter alia a declaration that the 1 st and 2nd Respondents are not residents or citizens of Kenya and therefore they cannot sustain their proprietorship the land registered as Plot Number 1 Group X Mjibu Barani -Malindi and of Land Title Number Lt.37 Folio 163A File 3192 under freehold tenure. 2. Contemporaneously with the Petition, the Petitioner filed a Notice of Motion dated 9th April 2025 seeking a conservatory order to restrain the 1st and 2nd Respondents jointly and severally or through their agents or persons acting under them from selling, transferring mortgaging, sub-dividing, leasing or doing anything with respect to all that parcel of land registered as plot No.1 Group X Mjibu Barani Malindi and title No. LT 37 Folio 1634 File 3192. 3. The application is premised on the grounds set on the face of the Notice of Motion and the supporting affidavit o Peter Ponza Kadzeha sworn on even date. 4. In the said affidavit he deposes that he is the Chairperson of the Petitioner and he has instituted the suit in public interest and in promotion of constitutionalism and observance of the Constitution. 5. He deposes that from the records produced by the 1 st and 2nd Respondents, the first registered owner of the suit property one Nabhan Bin Rashid Salim Bin Khamis sold the same to the MLD PETITION NO. E014 OF 2025 (RULING) Page 2

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Respondents’ father Purshottam Chaturbhai Patel on 30 th June 1938. The said Purshottam Chaturbhai Patel later moved to India and died there on 18th June 1983. 6. He further deposes that the suit property was subsequently transferred to the Respondents who are citizens of the United States of America contrary to section 65(1) of the Constitution of Kenya. 7. In response to the application, the Respondents filed a Replying Affidavit and Notice of Preliminary objection dated 13 th May 2025 raising the following grounds: i. That the Petitioner lacks capacity to institute proceedings on behalf of the association without the written authority to appear plead and act on behalf of its members in writing pursuant to Order 1Rule 13 of the Civil Procedure Rules and he suit is therefore a non-starter. ii. That the suit herein is res judicata as the matter before the court was already determined in ELC CASE NO. E007 OF 2023. iii. That the suit is frivolous, vexatious and an abuse of the court process and should be struck out. 8. The Petitioner responded to the P.O through a Replying affidavit sworn on 2.6.2025. MLD PETITION NO. E014 OF 2025 (RULING) Page 3

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9. The Preliminary Objection was canvassed by way of written submissions and both parties filed their submissions pursuant to the Court’s directions. ANALYSIS AND DETERMINATION 10. i. The main issues for determination are: Whether the Petitioner has locus standi to prosecute the suit ii. Whether the suit is res judicata iii. Whether the petition is frivolous, vexatious and an abuse of the court process. 11. In Black’s Law Dictionary 9th Edition, Page 1026 locus standi is defined as the right to bring an action or be heard in a given forum. 12. The 1st and 2nd Respondents contended that the Petitioner lacks the capacity to institute proceedings on behalf of the association without the written authority to appear or act on behalf of the association. They submitted that under Article 22 of the Constitution every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of rights has been denied, violated or infringed or is so threatened. They added that Article 22(2d) specifically provides that in addition MLD PETITION NO. E014 OF 2025 (RULING) Page 4

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to a person acting in their own interest, court proceedings under this this clause may be instituted by an association acting in the interest of one or more of its members. 13. They submitted that under Article 260 of the Constitution person includes a company, association or other association or other body of persons whether incorporated or unincorporated. It is their further contention that even though it is clear that artificial persons can institute proceedings before any court of law, the said capacity is limited and unincorporated bodies can only sue through their registered officials with the authority of its registered members. 14. The 1st and 2nd Respondents placed reliance on the case of Kipsiwo Community Self Help Group v Attorney General and Others (2013) eKLR where the court observed that just because the Constitution allows unincorporated bodies to sue it does not vest them with legal capacity and such persons do not become persons in law who can be litigants who can sue in their own capacity. 15. They also relied on Kituo Cha Sheria v John Ndirangu Kariuki & Another ((2013) eKLR where the court held that 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. MLD PETITION NO. E014 OF 2025 (RULING) Page 5

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16. They further relied on the case of Ephantus Muriuki Muhoro & 4 Others v National Land Commission & Another (2018) eKLR for the proposition that where the action is brought in the name of some of the group members on behalf of others it is a requirement of law that the other members on whose behalf the action is brought be listed and their authority sought and obtained, if they are to benefit from the reliefs sought in the group action. 17. It was their contention that the Petitioner in this case had not produced any authority to institute proceedings on behalf of the persons it wished to represent and therefore the Petitioner lacks locus standi to bring the institute the Petition. 18. On the other hand, the Petitioner’s contention is that Article 260 of the Constitution defines person to include a company, association or other body of persons whether incorporated or unincorporated. 19. The petitioner contends that the Article must be interpreted in line with the principle in Article 259 of the Constitution. He adds that in interpreting the Kenyan Constitution, courts prioritize the spirit, purpose, values and principles outlined in Article 259(1). This means considering the broader context and purpose of the Constitution, not just the literal meaning of the words. The interpretation should promote human rights, the rule of law and good governance and that the promotion of human rights and fundamental freedoms MLD PETITION NO. E014 OF 2025 (RULING) Page 6

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should be given a generous and purposive interpretation to realize the rights guaranteed and to contribute to the advancement of the rule of law and good governance. 20. The Petitioner submitted that the Petition has been instituted to challenge the contravention of the Constitution of Kenya by the 3rd Respondent who registered the 1st and 2nd Respondent as proprietors of the suit property contrary to section 70 of the 1969 Constitution (now repealed) which prohibited non-nationals or nonresidents of Kenya from owning property in Kenya. The said provision is replicated in Article 65 of the Constitution which prohibits non-nationals from being registered as proprietors of land held under freehold tenure. 21. The Petitioners contented that the Petition was not instituted under Article 22 of the Constitution as alleged by the Respondents. They relied on the case of Mumo Matemu v Trusted Society of Human Rights Alliance & 5 Others (Civil Application No. 29 of 2014) (2014) KESC 6 KLR December 2024 (Ruling) where the Supreme Court held thus: “The NGO Act must be interpreted in conformity with the Constitution. Although Section 12(2(and (3) of the Act provides for the legal status of the 1st Respondent when read together with Articles 22, 258 and 260 of the Constitution and in the public MLD PETITION NO. E014 OF 2025 (RULING) Page 7

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interest, it is to be inferred that the 1st Respondent did not lose its locus standi even if it were to be assumed ta have lacked registered status. The three Articles give an enlarged view of locus standi to the effect that every person including persons acting in the public interest can move a court of law contesting infringements of any of the Bill of Rights” The Court further held that “… Even if the 1st Respondent was deregistered prior to filing the cause in this court, the new Constitution directs that every person, including an association whether incorporated or not can institute proceedings before a court challenging the contravention of the Constitution”. 22. Having perused the Petition, I note that it has been brought under the provisions of Articles 2, 3, 65 and 258 of the Constitution as well as under the Land Registration Act. 23. Article 258 of the Constitution provides that: (1) Every person has a right to institute court proceedings claiming that this Constitution has been contravened or is threatened with contravention. (2)In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by (a) A person acting on behalf of another person who cannot act in their own name; MLD PETITION NO. E014 OF 2025 (RULING) Page 8

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(b) A person acting as a member of or in the interest of a group or class of persons; (c) A person acting in the public interest ; or (d) An association acting in the interest of one or more of its members. 24. Article 260 of the Constitution defines a person to include a company, association or other body of persons whether incorporated or unincorporated. 25. In the instant case, the Petition has been instituted by an association and in terms of the provisions of Articles 258 and 260 of the Constitution and the case of of Mumo Matemu (supra)which clarified the position on locus standi with regard to unincorporated associations, and other bodies of persons, it is my finding that the Petitioner has the locus standi to institute the suit. 26. I will now move on to determine whether the suit is res judicata. The doctrine of res judicata is embodied in section 7 of the Civil Procedure Act which provides as follows: “No court shall try any suit or issue which in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title, in a court competent to try such subsequent suit in MLD PETITION NO. E014 OF 2025 (RULING) Page 9

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which such issue has been subsequently raised and has been heard and finally decided by such court.” 27. In the instant suit the 1st and 2nd Respondents contended that this Court delivered a ruling in ELC Case No. E007 of 2023 in which Petitioners had sued the 1st, 2nd and 4th Respondents together with other parties. The court held that the issue that the 1 st and 2nd respondents are not Kenyans but U.S Citizens who cannot be registered as proprietors of the suit property under freehold tenure could be ventilated under two other pending suits. 28. The Court observes that a Preliminary Objection must raise a pure point of law, capable of disposing of the suit without delving into disputed facts. Where resolution requires assessment of factual matters the objection ceases to be purely legal and may not succeed at this interlocutory stage. 29. As established in Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696, a Preliminary Objection that necessitates such factual inquiry is inappropriate for determination at this stage. 30. The third issue for determination is whether the Petition is frivolous, vexatious and an abuse of the court process. It is the 1 st and 2nd Respondents’ submission that there are three suits between MLD PETITION NO. E014 OF 2025 (RULING) Page 10

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the Petitioners and Respondents touching on the same subject matter. Apart from ELC Case No. E005 of 2023 which was filed by the 1st and 2nd Respondents against the Petitioner, the Petitioner filed ELC Case No. 7 of 2023 and the instant suit against the Respondents. 31. Without perusing the pleadings in the other suits, this court is not in a position to establish if the said suits raise the same issues which could have been determined in one suit. This aspect of the Preliminary Objection is therefore equally problematic as it requires the court to examine contested facts and therefore does not qualify as a pure point of law. 32. Ultimately the only valid point of law is the question of locus standi and having held that the Petitioner has the requisite locus standi, I find no merit in the Preliminary Objection and the same is hereby dismissed with costs to the Petitioner. Dated, signed and delivered virtually at Malindi this 6 th day of October 2026. J.M ONYANGO JUDGE In the presence of: MLD PETITION NO. E014 OF 2025 (RULING) Page 11

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1. Mr. Ongera for Mr. Njenga for the Petitioner 2. Mr. Mwarumba for Mr. omondi for the 1st and 2nd Respondents 3. Court Assistant: Happy MLD PETITION NO. E014 OF 2025 (RULING) Page 12

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