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ELCStruck Out

Kiragu & 2 others v Mbae & 8 others (Environment and Land Petition E003 of 2025) [2025] KEELC 5813 (KLR)

Environment and Land Court
31 July 2025
1,675 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This Environment and Land Court at Thika decision, delivered by Mogeni J on 31 July 2025, disposed of a Preliminary Objection dated 28 February 2025 raised by the 1st to 7th Respondents, together with two pending applications: the Petitioners' Notice of Motion dated 7 February 2025 seeking conservatory injunctive orders over suit parcels LR 154/33, LR 154/34 and LR 154/36, and the 1st to 7th Respondents' application dated 12 March 2025 seeking review of conservatory orders issued on 10 February 2025. The 8th and 9th Respondents also filed Grounds of Opposition contending no breach of Section 55 and the Third Schedule of the Physical and Land Use Planning Act had been demonstrated. The Court framed two issues: whether the 1st to 7th Respondents had the legal capacity (locus standi) to be sued, and costs. Applying Mukisa Biscuit on what constitutes a Preliminary Objection, and Alfred Njau on the meaning of locus standi, the Court held that the YMCA is a body corporate with perpetual succession, capable of suing and being sued in its own name, and that its trustees could not be sued in their personal capacity. The Court upheld the Preliminary Objection, holding that the jurisdiction of the Court had not been properly invoked since the wrong parties had been sued, struck out the Petition as misconceived and incompetent, and ordered each party to bear their own costs. The applications were not separately determined.

Questions the Court framed

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

  1. 1.Whether the 1st to 7th Respondents have the legal capacity namely locus standi to be sued
  2. 2.Who pays the cost of the Applications and Preliminary Objection?

Key legal issues

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01

Whether the 1st to 7th Respondents (trustees of YMCA) were properly sued in their personal capacity

Holding

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.

Reasoning

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.

p. 4
02

Whether the objection on the wrong parties qualified as a proper Preliminary Objection on a pure point of law

Holding

Yes - prioritising a Preliminary Objection on suing the wrong Respondents is a sound point of law capable of disposing of the suit.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Preliminary Objection dated 28/02/2025 is upheld
  2. 2.The Petition dated 7th February 2025 is struck out as misconceived and incompetent
  3. 3.Each party to bear their own costs

The bench

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

majority

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

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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

p. 4

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

p. 3

Costs

Each party to bear their own costs.

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 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.
p. 4Final orders - Petition struck out, each party to bear own costs
YMCA is a body corporate with perpetual succession and it can be sued and also can sue in its own capacity.
p. 4Separate legal personality of a body corporate
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.
p. 4Effect of lack of locus standi (quoting Mrima, J)

Issues in the judgment

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minor

Typographical/grammatical errors in the disposition, e.g. 'The suit is Petition since it was misconceived and incompetent'

minor

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

minor

The Replying Affidavit is inconsistently described as sworn twice on the same date

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, "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.