Kiragu & 2 others v Mbae & 8 others (Environment and Land Petition E003 of 2025) [2025] KEELC 5813 (KLR)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 1st to 7th Respondents have the legal capacity namely locus standi to be sued
- 2.Who pays the cost of the Applications and Preliminary Objection?
Key legal issues
#Whether the 1st to 7th Respondents (trustees of YMCA) were properly sued in their personal capacity
The Preliminary Objection was upheld; the proper party is the YMCA as a body corporate, and the Petition against the trustees personally was misconceived and incompetent and was struck out.
The Court held that YMCA is a body corporate with perpetual succession capable of suing and being sued in its own name. Relying on the doctrine of separate legal personality (Salomon v Salomon) and the authority in Julian Adoyo Ongunga, the Court found that suing the trustees personally amounted to suing the wrong parties, so the jurisdiction of the Court was not properly invoked and the Petition could not stand.
Whether the objection on the wrong parties qualified as a proper Preliminary Objection on a pure point of law
Yes - prioritising a Preliminary Objection on suing the wrong Respondents is a sound point of law capable of disposing of the suit.
Applying Mukisa Biscuit, the Court noted that a Preliminary Objection must raise a pure point of law on the assumption that the facts pleaded by the other side are correct. An objection that a party sued lacks capacity or locus standi challenges the right to be heard and, if determined affirmatively, can dispose of the suit without needing contested evidence, making it logically the first step in the proceedings.
Legal principles established
#- A body corporate with separate legal personality must be sued in its own name; its trustees cannot be sued in their personal capacity on its behalf
- A suit instituted by a party without locus standi or capacity is a nullity even where a valid cause of action subsists
Court orders
#- 1.The Preliminary Objection dated 28/02/2025 is upheld
- 2.The Petition dated 7th February 2025 is struck out as misconceived and incompetent
- 3.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Constitution of Kenya, 2010 - fundamental rights enforcement under the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice Rules, 2013
Relief refused
#Conservatory orders of injunction sought in the Notice of Motion dated 7/02/2025
The Petition itself was struck out following the upholding of the Preliminary Objection
Review of conservatory orders and restraining orders sought by the 1st - 7th Respondents in the Application dated 12/03/2025
The Court did not determine this application, having disposed of the matter on the Preliminary Objection
Costs
Each party to bear their own costs.
Quotable passages
#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 premises I uphold the Preliminary Objection on the ground that the jurisdiction of this Court has not been properly invoked. The suit is Petition since it was misconceived and incompetent and the same is hereby struck out. Each party to bear their own costs.
YMCA is a body corporate with perpetual succession and it can be sued and also can sue in its own capacity.
Locus standi relates mainly so the legal capacity of a party. The impact of a party in a suit without locus standi can be equated to that of a Court acting without jurisdiction, it all amounts to null and void proceedings.
Issues in the judgment
#Typographical/grammatical errors in the disposition, e.g. 'The suit is Petition since it was misconceived and incompetent'
The judgment records that the first Application dated 7/02/2025 and the second Application dated 12/03/2025 were for determination, but the Court determined only the Preliminary Objection and did not expressly dispose of either application in the final orders
The Replying Affidavit is inconsistently described as sworn twice on the same date
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Baya & 2 others v Kitunga & 13 others (Civil Appeal E027 of 2022) [2026] KECA 643 (KLR)[2026] KECA 643 (KLR)25 Mar 2026
Cite this brief
#Cite this brief
Caselaw, "Kiragu & 2 others v Mbae & 8 others (Environment and Land Petition E003 of 2025) [2025] KEELC 5813 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5813/eng@2025-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.