https://new.kenyalaw.org/akn/ke/judgment/keelrc/2026/1764

Dzinyefa v Programme for Christian-Muslim Relations in Africa (Employment and Labour Relations Cause E731 of 2024) [2026] KEELRC 1764 (KLR) (26 June 2026) (Ruling) Neutral citation: [2026] KEELRC 1764 (KLR) Republic of Kenya In the Employment and Labour Relations Court at Nairobi Employment and Labour Relations Cause E731 of 2024 BOM Manani, J June 26, 2026 Between Dr. Adrake Komi Dzinyefa Claimant and Programme for Christian-Muslim Relations in Africa Respondent Ruling 1.The Claimant instituted this action against the Respondent claiming that the latter improperly terminated the contract of service between the parties. As such, he seeks the various reliefs which are set out in the Statement of Claim dated 8th August 2024. 2.Upon service of the pleadings, the Respondent filed the application dated 2nd May 2025 seeking the following orders:-a.That the suit be struck out.b.That the Claimant be condemned to pay the costs of the case. 3.The application is premised on the grounds on the face thereof. It is also supported by an affidavit sworn by Joy N. Wandabwa, the Team Leader – Finance & Administration of the Respondent. 4.The affiant contends that the Respondent is an unincorporated entity which can only sue or be sued through its officials. Yet, the instant suit has been instituted against it directly. As such, she asserts that the action is incompetent. 5.The affiant contends that the Respondent, being a society which is registered under the Societies Act, has no standing to sue or to be sued in its own name. It is her case that the fact that the Claimant ignored this legal reality whilst instituting this claim renders the suit a nullity and a candidate for striking out. 6.The Claimant has opposed the application. He has filed a replying affidavit dated 7th November 2025 to anchor his objection to the motion. 7.The Claimant concurs that the Respondent is indeed an association which is registered under the Societies Act. He further concurs that the law allows such entities to sue or be sued through their officials. 8.The Claimant acknowledges that the Statement of Claim has a defect because of the failure to implead the officials of the Respondent. Nevertheless, he contends that such defect can be cured through an amendment to the pleadings. 9.The Claimant asserts that the error in the Statement of Claim was occasioned by the person who drafted it. As such, he contends that the court should not penalize him for the mistake. 10.The Claimant argues that the omission in the pleadings is a technical but not substantive issue. As such, he invites the court to invoke article 159 of the Constitution to overlook it (the omission) in order to administer substantive justice. 11.The Claimant prays for leave to amend the Statement of Claim in order to implead the officials of the Respondent. It is his case that this will serve the greater ends of justice. Analysis 12.The parties do not dispute the fact that the Respondent is a society which is registered under the Societies Act. As a matter of fact, the Respondent has presented to court Certificate of Registration No. 17167 which shows that it is registered under the Societies Act. On the other hand, the Claimant has presented the annual returns and notification of change of officials for the Respondent for the years 2021 and 2022 both of which demonstrate that it (the Respondent) is registered under the Societies Act. 13.The position in law is that an association which is registered under the Societies Act is not a legal person. As such, it lacks the legal capacity to sue and be sued in its own name. It can only initiate or defend legal proceedings through its officials. This reality has been restated in a plethora of judicial pronouncements. 14.In Peter Ngugi Geoffrey & 3 Others vs Mithini SDA Church (2019) eKLR, the trial court observed on the matter as follows:-“It is trite that a non-juristic person is incapable of suing or being sued in its name. If indeed the Defendant is registered under the Societies Act, then the right thing was to have it sued through its officials……A Society can only sue or be sued through its officials. That is the law.” 15.In Ahmed, Mohamed & Apunda (Suing as Chairman, Secretary and Treasurer of Langata Forest View Estate Association) & 4 others v Jaylani & 2 others (Environment & Land Case E024 of 2023) [2023] KEELC 16396 (KLR) (16 March 2023) (Ruling), the court had the following to say on the subject:-‘’….it is also imperative to state and reiterate that as concerns a registered society and an association, same can only sue or be sued through the bona fide and registered officials thereof; and not otherwise.’’ 16.In Trustees Kenya Redeemed Church & Anor vs Samuel M’Obiya & 5 others [2011] eKLR, the court expressed itself on the subject as follows:-‘’ It is trite law that a society under the Societies Act is not a legal person with capacity to sue or be sued. A society can only sue or be sued through its due office holders.’’ 17.Instituting a suit against an unincorporated body directly and not through its officials renders the case incompetent, bad in law and a nullity from the start. This reality has been spoken to in a series of decisions by the court. 18.In Mavoko Land Development Company Limited v Mlolongo Catholic Church & 2 others [2022] KEELC 1999 (KLR), the learned Judge stated on the subject as follows:-‘’In the instant matter, the suit was filed against a religious organization. The 1st Defendant is not a body corporate and has no legal personality. That being so it lacks the capacity to be sued in its own name and the suit against it is a non-starter, null and void ab initio.’’ 19.In Janto Construction Company Ltd v Enock Sikolia & 2 others [2020] KEHC 4890 (KLR), the trial court commended on the subject as follows:-‘’A claimant has a duty of ascertaining the legal status of a party intended to be sued. The reason being that it is only those entities which are either natural or legal persons which can successfully sue or be sued. Instituting legal proceedings against a non-legal entity renders the suit a non-starter.’’ 20.In Kipsiwo Community Self Help Group v Attorney General & 6 others [2013] KEELC 63 (KLR), the learned trial Judge observed on the subject as follows:-‘’Unincorporated entities have no legal capacity and cannot therefore sue in their own names. They can however sue through an entity with legal capacity. Just because the Constitution allows unincorporated bodies to sue, does not vest such bodies with legal capacity, and such bodies do not become persons in law, and cannot be the litigants or sue in their own standing. They still have to use the agency of a person recognized in law as having capacity to sue and to be sued.’’ 21.The issue of capacity to sue or be sued is a substantive matter which goes to the jurisdiction of the court to entertain a dispute. It is not a mere technicality. 22.Speaking to this reality, the court in the case of Mavoko Land Development Company Limited v Mlolongo Catholic Church & 2 others (supra) quoting with approval other decisions, stated as follows:-‘’The Defendants contend that they have no requisite legal capacity to be sued. It is trite that the presence of proper parties before the court is sine quo non to the exercise of jurisdiction of the court. This position was reiterated by the court in Apex Finance International Limited & another vs Kenya Anti-Corruption Commission [2012] eKLR citing with approval the Nigerian Supreme Court case of Goodwill & Trust Investment Ltd & Anor vs Will & Bush Ltd where the court held as follows:“..It is trite law that to be competent and have jurisdiction over a matter, proper parties must be identified before the action can succeed. The parties to it must be shown to be proper parties whom rights and obligations arising from the cause of action attach. The question of proper parties is a very important issue which would affect the jurisdiction of the suit in limine. When proper parties are not before the court the court lacks jurisdiction to hear the suit, and where the court purports to exercise jurisdiction which it does not have, the proceedings before it, and its judgment will amount to a nullity no matter how well reasoned.” 23.In a series of decisions, the position courts have adopted is that a suit which is commenced by or against an unincorporated body without going through its officials is a non-starter and bad in law. Inevitably, such suits have been struck out (see for example Peter Ngugi Geoffrey & 3 others vs Mithini SDA Church (2019) eKLR, Kipsiwo Community Self Help Group v Attorney General & 6 others [2013] KEELC 63 (KLR) & Kituo Cha Sheria v John Ndirangu Kariuki & another [2013] KEHC 3485 (KLR)). 24.The courts have further held that a suit which is commenced by or against an entity which has no legal capacity to sue and be sued is fatally defective and cannot be cured through amendment of the impugned pleadings. The only recourse that may be open to the parties to such action is to file fresh compliant proceedings. 25.Speaking to this reality, the court in the case of Kisumu Bar Owners Association v Cabinet Secretary, Ministry of Interior & Coordination of National Government & 2 others (Constitutional Petition E002 of 2024) [2024] KEHC 6003 (KLR) (27 May 2024) (Ruling) stated as follows:-‘’On whether such suit or Constitutional Petition could be amended to cure the petition, the court in the above petition held that no amendment could cure such defect and relying on the Kituo cha Sheria case (supra), struck out the petition on account that the legal capacity of a party to institute proceedings in court is not a technical matter, or one of form, and that failure to bring an action by a recognized juridical person is one of law and substance which cannot be accommodated within the latitude of Article 159(2) (d) of the Constitution.’’ 26.The question of the capacity of unincorporated entities to sue or be sued has not just been considered by the High Court and Courts of Equal Status. It has also been considered by the Court of Appeal with similar results. 27.In Finmax Community Based Group & 3 others v Kericho Technical Institute [2021] KECA 962 (KLR), the Court of Appeal acknowledged that an association is a person within the meaning of articles 50 and 260 of Kenya’s Constitution. However, it emphasized that such body can only litigate through its registered officials whose particulars must be specifically set out in the pleadings. 28.In Anderson Mole Munyaya & 3 others v Morris Sulubu Hare [2017] [2017] KECA 242 (KLR), the Court of Appeal reiterated the position that unincorporated persons can only sue or be sued through their officials. As such, it struck out the proceedings against the unincorporated entity in the dispute. 29.The two Court of Appeal decisions underscore the reality that a suit which is filed directly by or against an unincorporated association is bad in law. Needless to say that the two decisions are binding on this court. 30.Having regard to the foregoing, it is apparent that the Claimant’s suit, as filed, is not only incompetent but null and void ab initio. It cannot be salvaged through amendment of pleadings. 31.The Claimant relies on the holding in the case of Mwariki Farmers Company Limited v Catholic Diocese of Nakuru & 5 others [2025] KEELC 624 (KLR) to urge the court to dismiss the instant application and allow him to amend the Statement of Claim. In that case, the Environment and Land Court sitting at Nakuru declined to dismiss a suit which had been filed against a church on the ground that the defect in the pleadings could be cured through an amendment to implead the trustees of the church. 32.However, this court is disinclined to follow the precedent in the Mwariki Farmers Company Limited v Catholic Diocese of Nakuru & 5 others (supra) case for the following reasons. First, it is noteworthy that the decision stands alone in a plethora of decisions, including by the Court of Appeal, which state that instituting a suit directly against an unincorporated entity is fatal. A reading of that decision demonstrates that the learned Judge’s attention was drawn to several decisions in which courts struck out cases which had been filed directly by or against unincorporated entities. Despite this, the court sustained the suit without cogently indicating the basis for its departure from existing precedent. 33.Second, the aforesaid decision was by a court of equal status with this court and is therefore not binding on the court. In contrast, this court is bound by the Court of Appeal decisions in Finmax Community Based Group & 3 others v Kericho Technical Institute (supra) and Anderson Mole Munyaya & 3 others v Morris Sulubu Hare (supra) which leave no doubt that the instant suit is fatally defective and a candidate for striking out. Determination 34.Having regard to the foregoing, the court arrives at the conclusion that the instant suit is fatally defective as it was instituted directly against an unincorporated entity which has no capacity to sue or be sued in its own name. 35.As such, the suit is struck out. 36.There is no order as to costs. DATED, SIGNED AND DELIVERED ON THE 26TH DAY OF JUNE, 2026B. O. M. MANANIJUDGEIn the presence of:…………….for the Claimant…………….for the RespondentORDERIn light of the directions issued on 12th July 2022 by her Ladyship, the Chief Justice with respect to online court proceedings, this decision has been delivered to the parties online with their consent, the parties having waived compliance with Rule 28 (3) of the ELRC Procedure Rules which requires that all judgments and rulings shall be dated, signed and delivered in the open court.B. O. M MANANI