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ELCStruck OutOriginating Summons dated 12th March 2026

Mwakindo (Suing as General Overseer and National Chairman of Evangelistic Saints Assembly Ministry) v Mwambire (Sued on Behalf of Wohemi) & another (Environment and Land Miscellaneous Application E006 of 2026) (Environment and Land) [2026] KEELC 5144 (KLR)

Environment and Land Court
31 July 2026
4,659 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 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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The Applicant, Pastor Hebron Maghanga Mwakindo, sued as General Overseer and National Chairman of Evangelistic Saints Assembly Ministry (ESAM), invoking Section 56 of the Trustees Act and Order 37 Rule 1 of the Civil Procedure Rules. He sought application of the cy-près doctrine over Plot No. 1216, Lower Msambweni, Voi, allegedly donated by the 2nd Respondent to the 1st Respondent for church purposes, and orders compelling its transfer to him for continued worship, plus demolition of a bedroom the 1st Respondent built on the premises. The Respondents did not participate despite service; the suit proceeded by written submissions. The court framed three issues: locus standi, entitlement to reliefs, and costs. On standing, the court held the Applicant produced no resolution or authority from ESAM authorising the representative suit; a membership card and practising licence were insufficient under Order 1 Rule 8 and Section 41 of the Societies Act. On the merits, the foundational donation agreement dated 9th June/July 2015 was never produced, so the terms of any charitable trust, and the nexus between the Applicant and the purported donor, could not be ascertained. Applying the Fryda exposition of cy-près, the court found no evidential basis to invoke the doctrine and no legal or beneficial interest in the Applicant. The originating summons was struck out with costs in the summons.

Questions the Court framed

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

  1. 1.Whether the Applicant has the requisite locus standi to institute the suit.
  2. 2.Whether the Applicant is entitled to the reliefs sought.
  3. 3.Who is to bear the cost?

Key legal issues

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01

Locus standi of the Applicant to institute a representative suit on behalf of a society

Holding

The Applicant lacked locus standi; he produced no resolution or authority from ESAM authorising the suit, and a membership card and practising licence did not confer standing

Reasoning

Suing as General Overseer and National Chairman of ESAM, the Applicant bore the burden of proving authority. Order 1 Rule 8 requires authorisation by members for representative suits, and Section 41 of the Societies Act requires court-satisfied written appointment. No authority to plead, resolutions, or documentary mandate were produced, so capacity was not established.

p. 6
02

Entitlement to cy-près relief

Holding

Reliefs refused; the donation agreement of 9th July 2015 was not produced, so the terms and existence of a charitable trust could not be ascertained, and the Applicant showed no legal or beneficial interest in the trust

Reasoning

Section 56 of the Trustees Act permits applications by trustees or persons beneficially interested. The Applicant's relationship was contractual with the 1st Respondent via lease; the nexus between the Applicant and the purported donor was not established, and without the founding instrument the court could not find a failed charitable purpose warranting cy-près application.

p. 10
03

Costs

Holding

Costs of the summons awarded against the Applicant, the suit having been struck out

Reasoning

Having found no locus standi and no evidential basis for the summons, the court struck it out with costs in the summons, exercising discretion under Section 27(1) of the Civil Procedure Act as cited by the Applicant.

p. 10

Legal principles established

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  • Locus standi concerns the sufficiency and directness of a litigant's interest in proceedings and must be established first in litigation
  • A representative suit on behalf of members requires authority or resolution authorising the litigant; a membership card does not confer standing
  • The cy-près doctrine applies only where the original charitable purpose has failed and the donor manifested a general charitable intention, on an evidential foundation

Court orders

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  1. 1.A declaration that the Applicant has no locus standi to institute the originating summons against the respondents.
  2. 2.The originating summons dated 12.3.2026 is struck out with costs in the summons.

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 56 of the Trustee Act (CAP 167); Sections 3A, 37(1), 63(e) of the Civil Procedure Act; Order 51 Rule 1 and Order 37 Rule 1 of the Civil Procedure Rules, 2010

Relief refused

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Application of the cy-près doctrine and transfer of Plot No. 1216, Lower Msambweni, Voi to the Applicant

No evidential basis to invoke cy-près; the underlying donation agreement was not produced and the Applicant failed to establish legal or beneficial interest or locus standi

p. 10

Compulsion of the 1st Respondent to demolish his bedroom within the church premises

Suit struck out for want of locus standi and absent evidential foundation

p. 10

Costs

The originating summons is struck out with costs in the summons (costs awarded against the Applicant).

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.

The court finds that the Applicant has no locus standi to institute this suit as against the Respondents.
p. 6locus standi
In the absence of instrument laying the foundation of the applicant's summons, I find that there is no evidential basis upon which the Court can invoke the cy-près doctrine or grant the reliefs sought by the Applicant.
p. 10cy-près doctrine
The originating summons dated 12.3.2026 is struck out with costs in the summons.
p. 10final orders
The Cy-près doctrine applies where the purpose for which a charity has been established has failed or can no longer be achieved.
p. 9doctrine of cy-près (as cited in William Charles Fryda)

Issues in the judgment

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minor

Dates of service and affidavit inconsistent with the rest of the record (e.g. service effected '27.4.206' and further affidavit sworn '5th of June 2026' whereas directions taken on 10.6.2026)

minor

The date of the donation agreement is given inconsistently as 9th June 2015 in the factual background and 9th July 2015 in the demand letter discussion

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwakindo (Suing as General Overseer and National Chairman of Evangelistic Saints Assembly Ministry) v Mwambire (Sued on Behalf of Wohemi) & another (Environment and Land Miscellaneous Application E006 of 2026)  (Environment and Land) [2026] KEELC 5144 (KLR)", Case Analysis (2026). Originating Summons dated 12th March 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5144/eng@2026-07-31

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