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ELCStruck OutNot stated in the judgment

Peter Ngugi Geoffrey & 3 others v Mithini SDA Church [2019] KEELC 73 (KLR)

Environment and Land Court (or High Court) at Murang'a
19 December 2019
JKJ.G. Kemei
853 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a land dispute because the plaintiffs sued an unregistered church directly instead of naming its officials or trustees.

What this practically means

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Executive summary

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The Defendant raised a preliminary objection on 26 September 2019 arguing that it has no legal capacity to be sued, that the suit was a non-starter, bad in law and an abuse of court process. The Plaintiffs opposed, contending that a church can be sued in its own name and that the Defendant had been sued in Thika Law Courts on the same subject matter without objection. The Defendant maintained that only a juristic person can sue or be sued, that it is not registered under any law in Kenya, and that a non-existent entity cannot maintain a cause of action. Framing the sole issue as whether the objection raised a pure point of law, the court applied the Mukisa Biscuit test and held that the question of the Defendant's legal capacity was a matter of law requiring no investigation of facts. Relying on section 3 of the Societies Act and the decision in John Otteyo Amwayi, the court found that the Defendant, an unincorporated religious organization, is not a body corporate and cannot be sued in its own name; it could only have been sued through its officials or trustees, none of whom were disclosed or joined. The objection was therefore allowed, with the consequence that both the Plaintiffs' suit and the counterclaim were struck out. The Plaintiffs were ordered to pay the costs of the preliminary objection and the suit. Judgment was delivered at Murang'a on 19 December 2019 by J.G. Kemei, Judge.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Preliminary Objection raises a pure point of law
  2. 2.Whether the Defendant, an unregistered/unincorporated church, has legal capacity to be sued in its own name

Key legal issues

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01

Whether the preliminary objection is a pure point of law

Holding

Yes - the question of the Defendant's legal capacity is a matter of law capable of disposing of the suit without requiring investigation of facts

Reasoning

The court applied the Mukisa Biscuit definition, noting the criteria that an objection must be a matter of law, capable of disposing of the suit, not blurred with factual details, and not calling for the exercise of discretion. Whether the Defendant is a juristic person capable of being sued is a question of law requiring no evidence, so the objection was properly framed.

p. 2
02

Whether the Defendant has legal capacity to be sued in its own name

Holding

No - the Defendant is not a juristic person; under the Societies Act it can only be sued through its officials or trustees

Reasoning

Section 3 of the Societies Act does not confer legal personality on societies, and the plaint exhibited no registration. Following John Otteyo Amwayi, the legislature did not intend unincorporated societies to sue or be sued in their own names. Had registration existed, the church should have been sued through its officials, none of whom were disclosed.

p. 2

Legal principles established

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  • A preliminary objection must be a pure point of law, not blurred with facts requiring evidence or discretion
  • An unincorporated society cannot sue or be sued in its own name; it may only sue or be sued through its officials or trustees

Court orders

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  1. 1.The Preliminary Objection is allowed
  2. 2.Both the instant suit and the counterclaim are struck out
  3. 3.The Plaintiffs shall meet the costs of the Preliminary Objection and the suit

The bench

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One judgment of the whole court — no separate or dissenting opinions.

JK
majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the court over the suit; preliminary objection raised under civil procedure practice

Relief refused

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Plaintiffs' suit against the Defendant in its own name

The Defendant lacks legal capacity to be sued as it is not a juristic person and should have been sued through its officials or trustees

p. 2

Costs

The Plaintiff shall meet the cost of the Preliminary Objection and the suit.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the upshot the Preliminary Objection is merited it is allowed with the consequence that both the instant suit and the counterclaim are struck out.
p. 2Final orders - striking out suit and counterclaim
The Plaintiff shall meet the cost of the Preliminary Objection and the suit.
p. 2Costs order
A Society can only sue or be sued through its officials. That is the law.
p. 2Capacity of unincorporated societies

Issues in the judgment

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minor

Citation typo in judgment: Mukisa Biscuit citation printed as '91969) EA 696'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Peter Ngugi Geoffrey & 3 others v Mithini SDA Church [2019] KEELC 73 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/73/eng@2019-12-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.