https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2915

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ISOLO** **ELC APPEAL NUMBER E029 OF 2025** **CATHOLIC CHURCH MISSION ……………………………APPELLANT** **VERSUS** **EMMA ADAN ABDUBA ……………………………………RESPONDENT** ***[Being an Appeal from the Judgment/Decree of Hon. Christine Wekesa – Senior Principal Magistrate in Isiolo MCELC NO. E003 OF 2023 Dated 7thSeptember, 2025, but [sic] delivered on the 7th of November, 2025]*** **JUDGMENT** 1. The Respondent herein *[who was the Plaintiff in the lower court]* filed the Plaint dated the 25.05.2023; and wherein the Respondent sought various/diverse reliefs. 2. The reliefs were: 3. ***A declaration that the plaintiff is the rightful and legal owner of the suit property.*** 4. ***A permanent injunction be issued restraining the defendant, its agents, servants and all persons acting/claiming through or in the name of the defendant from proceedings to lease, occupy, collect rents and or revenue, alter, alienate and or transfer LR No. Marsabit/Jirme/46.*** 5. ***An order of permanent injunction compelling the defendant to pay the plaintiff profits made from the parcel of land.*** 6. ***Means Profits.*** 7. ***General damages.*** 8. ***Costs of the suit.*** 9. **Interest on [d], [e] and [f] above.** 10. **Any other order that the court may deem fit to grant.** 11. The Appellant herein, which was described as a religious organization registered under the **Societies Act, Chapter 108 Laws of Kenya**, duly entered appearance; filed a statement of defence and counter claim. The statement of defence is dated the 15.01.2025. The Appellant denied/contested the claims by and on behalf of the Respondent. 12. Furthermore, the Appellant contended that the suit property lawfully belongs to it and hence same sought various reliefs *vide* the Counter-claim. The reliefs included: declaration that the Appellant *[counter claimer]* is the legal owner of the suit property; declaration that the defendant transferred the suit property to herself illegally, and unprocedurally and fraudulently; an order directing the District Land Registrar Marsabit to cancel the certificate of title issued in the name of the respondent; an order directing the district land registrar Marsabit to issue fresh title deeds in the name of the Appellants; general damages for trespass; and costs. 13. The suit in the lower court was duly heard and disposed of *vide* Judgment delivered on the 21.09.2025. The learned trial magistrate [Hon. Christine Wekesa – S P M] found and held that the Respondent had proved/established her claim to the suit property. To this end, the trial court entered Judgment in terms of prayers [a] and [b] of the Plaint dated 25.05.2023. 14. On the other hand, the learned trial magistrate proceeded to and struck out the counter claim that had been filed by the Appellant. However, there is not reason that has been indicated in the Judgment to underpin the striking out of the counter claim. For good measure, there is simply a sentence indicating that the Counter-claim has been struck out. 15. Dissatisfied with the Judgment and the consequential decree arising therefrom, the Appellant has approached this court *vide* Memorandum of Appeal dated [sic] the 06.11.2025. 16. The grounds highlighted in the body of the Memorandum are: 17. ***That the learned trial magistrate erred in law and in fact by holding that the Respondent had proved ownership of the suit property known as L.R No. Marsabit/Jirme/46 without proper considering and evaluating the Appellant’s evidence and submissions on the root of title.*** 18. ***That the learned trial magistrate erred in law and in fact by failing to appreciate that the Respondent’s title was obtained fraudulently, unprocedurally, and/or through misrepresentation, contrary to the provisions of Section 26[1] [a] & [b] of the Land Registration Act.*** 19. ***That the learned trial magistrate erred in law and in fact in disregarding and/or misapprehending the evidence of the Appellant’s witness, particularly that the late Father John Asteggiano acquired suit property on behalf of the Catholic Church Mission, and not in his personal capacity.*** 20. ***That the learned trial magistrate erred in law and in fact by failing to find that the Appellant was in actual occupation, having lived on the property since the year 1991, and its rights to the suit property could not be defeated or extinguished by issuance of title deed.*** 21. ***That the learned trial magistrate erred in law by failing to properly apply the evidentiary burden under Section 107 and 109 of Evidence Act, thereby unfairly shifting the burden of proof onto the Appellant.*** 22. ***That the learned magistrate erred in fact and law in failing to properly evaluate the documentary evidence and testimonies presented by the Appellant, particularly the correspondences, transfer and affidavits of the late Father Asteggiano evidencing the church’s interest in the property.*** 23. ***That the learned trial magistrate erred in law and in fact by granting declaratory and injunctive orders in favour of the respondent in the absence of the of sufficient proof of ownership or possession.*** 24. ***That the learned trial magistrate erred in law by striking out the Appellants counterclaim without adequate cosindering of the merits and the pleadings on record.*** 25. ***That the learned magistrate erred in law fact failing to appreciate that dispute was a trust and succession nature which ought to have been determined in a manner that is consistent with Article 40 of the Constitution of Kenya.*** 26. ***That the learned magistrate’s judgment was against the weight of the evidence on record, the applicable principles of law and failed to consider the Appellant’s submissions.*** 27. The subject appeal came up for directions on the 23.02.2026; whereupon learned counsel for the Appellant intimated to the court that same had filed and served the record of appeal. In addition, the Learned counsel posited that the record of appeal was complete. To this end, the learned counsel sought directions as pertains to the hearing and disposal of the appeal in line with the provisions of **Order 42 Rule 13 of the Civil Procedure Rules, 2010.** 28. With the concurrence of the learned counsel for the Respondent, the court proceeded to and issued directions. The directions were: The appeal shall be heard before one Judge sitting at Isiolo; the appeal shall be canvassed by way of written submissions; the Appellant shall file and serve written submissions within 14 days from the date of directions; the Respondent shall file and serve written submissions within 14 days from the date of service; and the Appellant shall be at liberty to file rejoinder submissions [if any] within 7 days from the date of service. 29. The court thereafter scheduled the matter for mention on the 05.05.2026, to discern compliance and to issue a date for Judgment. The matter indeed came up for mention on the scheduled date, whereupon the court discovered that there was an issue pertaining to and concerning the locus standi [the Legal Capacity] of the Appellant, who had been sued in its own name, despite having been described as [sic] a religious organization registered under the provisions of the Societies Act. 30. Flowing from the foregoing, the court directed that the advocates for the parties do address the question of locus standi and its implications on both the original suit; and by extension the appeal. Learned counsel for the parties sought time to prepare and canvass the issue. To this end, the court adjourned the matter to the 06.05.2026. 31. On the return date, namely, the 06/05/2026; learned counsel Mr. Kibe appeared for the Appellant, while Mr. Owade, appeared for the Respondent. Both Advocates made brief submissions on the question of the *locus standi;* the competence of the original suit and the appeal; and on the legal implication[s] of a suit filed against a non-legal entity. 32. Learned counsel for the Appellant submitted that locus standi denotes the capacity of a party to sue or be sued. Counsel contended that locus standi is a critical question and issue. 33. Regarding the meaning and the import of the locus standi, Learned counsel invited the court to take cognizance of the holding in the case of **Law Society of Kenya versus the Commissioner of Lands [2000] eKLR.** 34. Secondly, learned counsel for the Appellant submitted that the Appellant herein is not a corporate body. In particular, it was submitted that the Appellant is an unincorporated body. To this end, counsel contended that the Appellant herein was not seized of the legal capacity to sue or be sued. Moreover, learned counsel submitted that an unincorporated body can only sue in matters pertaining to the constitution and not in ordinary civil suit. The provisions of **Articles 22, 258 and 260 of the Constitution 2010**, were cited in support of the submissions. 35. Thirdly, learned counsel for the Appellant has submitted that insofar as the suit in the lower court was instituted against a non-legal entity, the suit was incompetent and thus the appeal ought to be allowed. In support of this contention, learned counsel cited the decision in the case of ***Finmax Community Based Group & 3 others v Kericho Technical Institute [2021] eKLR - Civil Appeal 120 of 2017*.** 36. *In a nutshell,* learned counsel for the Appellant invited the court to find and hold that the appeal is merited. The court was implored to allow the appeal and the set aside the proceedings and the consequential Judgment arising therefrom. 37. Learned counsel for the Respondent highlighted four key issues. Firstly, it was submitted that the provisions of **Order 1 Rule 9 of the Civil Procedure Rules, 2010** provides that no suit shall be defeated on the basis of non-joinder; or mis-joinder of parties. To this end, learned counsel contended that despite the fact that the party sued was not a legal entity, the court ought not to non-suit the respondent. To this end, Learned Counsel referenced the provisions of Article 159[2] [d] of the Constitution, 2010. 38. Secondly, it was submitted that even where a party has failed to join the necessary parties, the court is seized of the requisite jurisdiction to decree or direct addition, or substitution of a party, where appropriate. Learned counsel proceeded to and invoked the provisions of **Order 1 Rule 10 of the Civil Procedure Rules, 2010.** 39. Be that as it may, when the court inquired from counsel whether there was any application in terms of Order 1 Rule 10 of the Civil Procedure Rules, counsel responded in the negative. Moreover, learned counsel posited that no such application has been made in respect of the subject appeal. 40. Thirdly, learned counsel for the respondent submitted that the Appellant herein duly entered appearance; filed a statement of defence and counter claim, without any protest. In addition, it was contended that the Appellant participated in the proceedings and thus the Appellant is estopped from questioning the competence of the suit in the lower court. Moreover, the Court was invited to treat the Appellant as a Juristic person arising from its conduct during the proceeding[s] in the Lower Court. 41. Responding to a question from the court, learned counsel for the Respondent however, conceded that the doctrine of estoppel does not operate to defeat or negate a Statutory provision of the law. 42. Finally, learned counsel for the Respondent submitted that the Respondent herein placed before the lower court cogent and credible evidence to demonstrate, her rights and interest[s] in respect of the suit property. Notably, learned counsel posited that the Respondent duly proved/established her claim[s] to the suit property. 43. As a result of the foregoing, Learned Counsel invited the court to find and hold that [sic] the mis-joinder or non-joinder, ought not to be deployed to defeat the respondent’s claim to the suit property. Instructively, the Court was reminded of the obligation to determine matters on merits. 44. I have considered the record of appeal and the submissions made by/on behalf of the parties, and I discern two [2] key issues for consideration and determination. The issues are: Whether the suit against the Appellant [*who was the defendant in the lower court*] was defeated on the basis of locus standi; and What is the legal implication[s] of proceedings and Judgment rendered in a scenario where a party is *devoid* of locus standi]. 45. Regarding the first issue, it is important to recall and reiterate that the suit in the lower court was filed against the Appellant herein and who was described as a religious organization registered under the Society’s Act, Chapter 108, Laws of Kenya. The description of the Appellant at the foot of the plaint does not show/demonstrate that the Appellant was/is a body corporate. 46. Nevertheless, there is no gainsaying that organization[s] registered under the society’s Act, Chapter 108, Laws of Kenya do not accrue any corporate status. Such organizations are not bodies corporate. For coherence, the said organization[s] do not acquire any legal status, to warrant same suing or being sued in their own names. 47. Suffice to state that such organizations can only sue or be sued through the names of the registered official[s]; or through the registered trustees, [if any], subject to their Constitutions/ constitutive Charters. 48. During the highlighting of submissions on the 06.05.2026, learned counsel for the Appellant conceded that the Appellant is not a body corporate. For good measure, counsel posited that the Appellant is an unincorporated body and thus same was incapable of being sued in its own name. 49. On his part, learned counsel for the Respondent did not contest the status of the Appellant. Moreover, learned counsel posited that the suit had been brought against the Appellant, as a religious organization. 50. Be that as it may, it was submitted that the Appellant duly entered appearance; file a statement of defence; filed a counter claim; and participated in the proceedings. To this end, the court was invited to deem or treat the Appellant as a juristic body and thus deem the proceedings as having been lawfully commenced. 51. I beg to state that before a litigant, or Party files /commences any suit/civil proceedings, the ones which were commenced by the respondent not *excepted*, the litigant is obliged to satisfy itself on the question of locus standi. 52. I wish to underscore that the issue of locus standi [the Legal Capacity] impacts upon both parties, whether as the plaintiff or as the defendant. Simply put, a Plaintiff must be seized of the capacity to sue; and the Defendant must equally be possessed of the capacity to be sued. 53. The essence of locus standi has been the subject of various court decisions. Notably, in the case of Rajesh **Pranjivan Chudasama v Sailesh Prajivan Chundasama (2014) eKLR**, the Court of Appeal addressed the meaning and tenor of *locus standi*. Furthermore, the court also drew a distinction between locus standi and cause of action. 54. The court stated thus: **‘In the case of Alfred Njau & Others v City Council of Nairobi (supra) this Court had occasion to discuss the two. They stated:** **“*Lack of locus standi and a cause of action are two different things. Cause of action is the fact or combination of facts which give rise to a right to sue whereas locus standi is the right to appear or be heard, in court or other proceedings; …”*** **The court proceeded to state:** **“*To say that a person has no cause of action is not necessarily tantamount to shutting the person out of the court but to say he has no locus standi means he cannot be heard, even on whether or not he has a case worth listening to.”*** 1. I beg remind myself that what was before the lower court was not a constitutional petition. Similarly, what is before me is an appeal arising out of the Judgment of the lower court. For good measure, it is not a Constitutional Petition in terms of **Articles 22 and 258 of the Constitution, 2010.** 2. The distinction adverted to in the preceding paragraph is critical. It is critical because under the Constitution 2010, an unincorporated body, including associations and registered societies, can sue in their own names. However, that can only happen when the Petition is mounted in accordance with provisions of **Articles 22 and 258 of the Constitution, 2010.** 3. As pertains to ordinary civil suits/proceedings, like the One which was filed in the Lower Court, an unincorporated body, including societies and associations can only sue or be sued through their registered officials or registered trustees, whichever is the case. 4. The above position was highlighted in the case of **Eritrea Orthodox Church vs. Wariwax Generation Ltd. [2007] eKLR**. The Court stated as follows: **“There is no doubt that the plaintiff is non-incorporated body of many members registered under the Societies Act, Cap 108 of the laws of Kenya. That is how it has indeed described itself in paragraph 1 of the plaint. Nor does the plaint clothe the plaintiff in any other way or with any other name or capacity. It will therefore be so treated. It is now trite law that a society registered under the said Act is not an incorporated body which can assume capacity to sue or be sued in its own name in any legal proceedings. It is an ordinary society whose members, if they wish to sue, can do so only under a representative capacity under Order 1 rule 8 of Civil Procedure Rules.”** 1. Bearing the foregoing in mind, my answer to issue number one is *four-fold.* Firstly, the Appellant herein, which is a religious organization, stated to be registered under the Society’s Act, is not a body corporate; or a Legal entity. Simply put, it is an unincorporated body, devoid of the Juristic capacity in the eye[s] of the Law. 2. Secondly, by virtue of being an unincorporated body, the Appellant herein could not have been sued in the subordinate court in its own name. On the contrary, the Appellant could only have been sued through its officials or registered trustees [if any]. 1. Thirdly, the Appellant was bereft of locus standi. In this regard, there is no gainsaying that the suit against the Appellant in the lower court, was neither maintainable nor tenable. The suit was dead in the water. 2. Turning to the Second issue, namely; the legal implications of the suit filed against a body *devoid* of locus standi, it is important to underscore that legal proceedings can only be maintained against legal entities, whether natural, or Juristic. Where a suit is commenced against a non-legal entity, the suit; the proceedings; and the consequential Judgment [if any] are nullities. 3. Moreover, it is trite that where a suit is commenced against a non-legal entity, such a suit *[if at all same can be described as a suit],* is not capable of being redeemed on the basis of [sic] amendment. In my humble view, an amendment presupposes the existence of a valid law suit, which can be “repaired” by way of some adjustments. 4. However, in respect of what was before the lower court and by extension before me, no amendment can suffice. Simply put, one cannot purport to breathe Life into a Dead object. It is inconceivable. 5. Luckily, the law to this end is settled. In the case of **Deposit Protection Fund Board in Liquidation of Euro Bank Limited (In Liquidation) v Rosaline Njeri Macharia & another [2016] eKLR - Civil Appeal 64 of 2007,** the Court of Appeal addressed a similar situation. 6. The court stated thus: ***[29] Clearly, a suit not by or against a person or a body corporate is incompetent. It is a nullity. That answers the first question. If more authority was required, the philosophy in the sagacious words of Madan, JA as he then was in D. T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & Another, (*Civil Appeal No. 37 of 1978*) that “*acourt of justice should aim at sustaining a suit rather than terminating it by summary dismissal…”, *show that only there is a suit, however poorly drafted, is amendment possible to save it. Where, as here, the suit is a nullity, there is no litigation in being in law and the issue of amendment does not arise. Madan, JA as he then was alluded to litigation which is akin to a patient who can be treated and healed. Here, the patient is in the morgue. He is dead.*** ***[30] In D.T. Dobie’s case (supra), there was a suit in being and the issue was whether to strike it out or not. Not so in the instant case which can be distinguished on the ground that in the instant appeal, there was no suit before trial judge. In light of this, the learned judge was correct in striking out the plaint as it had no plaintiff known to law, the Deposit Protection Fund not being a body corporate.*** 1. Bearing in mind the ratio [holding] espoused in the decision above, it is crystal clear that a suit by or against a non-legal entity is a nullity. Such a suit is not maintainable. In this regard, I find and hold that the entirety of the proceedings and the consequential Judgment, were undertaken and made in *vacuum.* To my mind, there was not Law suit, which could anchor the impugned proceeding[s] and the attendant Judgment. 2. Before concluding on this issue, it suffices to reference the *dictum* in the case of **Benjamin Leonard Mc foy vs. United Africa Company Limited [1961] All ER 1169**, [the Mcfoy case] where the Privy Council considered the legal implications of an act which was void. 3. The Privy Council [Per Denning MR] stated thus: “***If an Act is void, then it is in Law a nullity. It is not only bad but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”*** **Conclusion** 1. Having reviewed the submissions on record, I come to the conclusion that the Appellant herein was improperly sued in the lower court. The Appellant was not seized of the requisite locus standi to be sued. Moreover, the fact that the Appellant participated in the proceedings, does not by itself warrant the Appellant being treated and deemed as [sic] a juristic/juridical body. 2. Furthermore, it is common ground that where proceedings are commenced against a body devoid and bereft of locus standi, the proceedings are a nullity. To my mind, such proceedings; and Judgment [if any] are irredeemable. [See the decision in **Deposit Protection Fund versus Rosaline Njeri Macharia** *[supra*]. **Costs.** 1. Regarding the Issue of Costs, it is important to underscore that costs ordinarily follow the even. However, there is no gainsaying that the Court retains a discretion on the question of Costs, to be exercised on good grounds; and depending of the peculiar circumstance[s] of each case. [See the provisions of Section 27 of the Civil Procedure Act, Chapter 21, Laws of Kenya]. 2. As pertains to the subject matter, it is not lost on me that the Appellant herein did not raise the issue of Locus Standi in the Lower Court. Uon the contrary, the Appellant participated in the matter/ proceeding[s] as though same was a Juristic/ Juridical person. In my humble view, the conduct of the Appellant cannot be rewarded with Costs. Consequently, the order that is acceptable as far as costs are concerned is for each Party to bear own Cost[s]. **Final orders** 1. I have agonized over the final orders, taking into account, that the Appellant herein was devoid of locus standi to be sued and thus equally divested of legal capacity to [sic] mount the appeal. 2. Nevertheless, I am minded to and Do hereby make the following final/ Dispositive Orders: 3. ***The Appeal be and is hereby allowed.*** 4. ***The suit vide Marsabit CMELC Number E003 of 2023 be and is hereby declared a nullity.*** 5. ***The Proceedings and the resultant Judgment are equally declared nullities.*** 6. ***Consequently, the Judgment delivered on the 07.11.2025 and the resultant decree arising therefrom, be and are hereby set aside.*** 7. ***The suit in the Lower court, namely; Marsabit CMELC Number E003 of 2023, be and is hereby struck out.*** 8. ***Each party shall bear own costs of the suit in the lower court.*** 9. ***Each party shall bear costs of the Subject Appeal.*** 10. Finally, and bearing in mind that the dispute pertaining to the ownership of the suit property has not been determined on merits, the parties, are at liberty to file appropriate proceedings, if so advised, subject to the provisions of the relevant/applicable law. 11. It is so ordered. **DATED, SIGNED AND DELIVERED AT ISIOLO THIS 13TH** DAY OF MAY, 2026 **OGUTTU MBOYA, FCIArb;CPM [MTI-EA]** **JUDGE** In the presence of Mukami: Court Assistant Mr. Kibe holding brief for Mr. John Mugambi for the Appellant. Mr. Owade for the Respondent