https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5144

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT VOI** **ENVIRONMENT AND LAND COURT CASE MISC APPLICATION E006 OF 2026** **HEBRON MAGHANGA MWAKINDO (SUING AS GENERAL OVERSEER AND NATIONAL CHAIRMAN OF EVANGELISTIC SAINTS** **ASSEMBLY MINISTRY) …………………………………………………..…….APPLICANT** **VERSUS** **SUCCESS MWAMBIRE SUED ON BEHALF OF WOHEMI ………..…1ST RESPONDENT** **MARY WAKUFA…………………………………………………………..2ND RESPONDENT** **RULING** **Introduction:** **1.**Before the court is an Originating Summons dated 12th of March 2026 invoking the Court’s jurisdiction pursuant to Section 56 of the Trustee Act (CAP 167), Section 3A, 37 (1), 63(e) of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules, 2010 seeking the following reliefs: 1. That this Honourable Court be pleased to apply the doctrine of cy-pres to the gift of property known as Plot No. 1216 Located at Lower Msambweni Voi and the gift be transferred to the applicant herein. 2. That this Honourable Court be pleased to compel the Respondents to transfer the property known as Plot No. 1216 located at Lower Msambweni to the applicant for the same original intended purpose which the donor had given the gift for. 3. That the 1st Respondent be compelled to demolish his bedroom which he built inside the church premises to allow the applicant to carry on church services as per the original intended purpose of the donor who is he 2nd Respondent. 4. That such further or other orders be made as this Court may deem fit in order to give effect to the charitable intention of the donor. 5. Costs of this application be provided for. 2.The originating summons is supported by a sworn affidavit of Hebron Maghanga Mwakindo on following grounds: - 1.THAT the property known as Plot No. 1216 Located at Lower Msambweni Voi was donated by Mary Wakufa to Word of Hope Evangelism Ministry [WOHEMI] for the specific charitable purpose of construction of a church building and having church activities or services. 2. THAT the donor had a general charitable intention in making the gift. 3.THAT the original purpose of the gift to the 1st Respondent has become impossible / impracticable / unlawful / obsolete due to the following circumstances: * 1. The Pastor and the Church or Ministry has relocated to Tanzania. 2. The Pastor has not left any congregation in the church premises or church building. 3. The Pastor has decided to convert part of the church building as his personal bedroom or vocational house. 4. THAT the 1st Respondent while being away from the property has decided to lease the said property to the applicant for the purpose of conducting a church service at a fee which was not the original intended purpose of the donor. 5. THAT the 1st Respondent did not disclose the material fact and the intention of the donor who is the 2nd Respondent to the Applicant when entering into a lease agreement with him. 6. THAT despite the fact that the 1st Respondent has leased the said property to the applicant, the 1st Respondent has been frustrating the efforts of the applicant to peacefully conduct church services as it was originally intended by the donor. 7. THAT as a result, the property cannot be applied strictly in accordance with the original terms of the gift by the 1st Respondent since his church relocated to another place. 8. THAT under the doctrine of cy-pres, the Court has jurisdiction to direct that the property be applied to a purpose as near as possible to the donor's original intention. 9. THAT it is in the interest of justice and preservation of the donor's charitable intention that this Honourable Court approves that the respondents transfer the property to the applicant for the use of the said property as per the donor's original intention. 10. THAT it is in the interest of justice that the orders sought herein be granted as prayed 11. THAT unless the orders sought herein are granted as prayed for by the Applicant, the original intended purpose of the donor shall not be attained, and the applicant shall suffer irreparable loss and damages. 12. THAT it is therefore necessary for this Honorable Court to apply the doctrine of cy-pres so that the property may continue to serve a charitable purpose.” **Factual Background**: 3.Mary Wakufa referred to as the 2nd Respondent is the registered owner of the disputed Plot No. 1216, Lower Msambweni, Voi, allegedly donated to the property to the 1st Respondent, (Pastor of the Word of Hope Evangelism Ministry (WOHEMI), for the purpose of conducting church services through an agreement dated 9th June 2015 whose term of reference is not known to the court as the agreement was not annexed amongst the documents placed before court by the Applicant. 4.The Applicant presented two Lease Agreements in respect to the suit parcel dated 14th May 2025 between Damaris Semo Chengo Mwambire and Pastor Hebron Maghanga Mwakindo, the Applicant, as lessee, leasing the church building at a monthly rent of Kshs. 10,000 and subsequent lease agreement dated 8th August 2025 between Rev. Success Patrick Mwabire, the 1st Respondent, as lessor, and Pastor Hebron Maghanga Mwakindo, the Applicant, as lessee, leasing the church building at a monthly rent of Kshs. 10,000/=. 5.The Applicant deposed in his affidavit in support that he has since been conducting church services in the suit property until the 13.1.2026 when the 1st Respondent served upon him a demand letter to vacate and surrender the suit property immediately which prompted the Applicant to institute the suit against the respondents for relief of cy-près. Further Affidavit was sworn by Hebron Maghanga on the 5th of June 2026. **Court’s Directions:** 6.The Applicant effected service upon the respondents pursuant to order 5 rule 22c of the civil procedure rules 2010 on 27.4.206 and placed on record an affidavit of service dated 28.4.2026. Upon the respondent being served with mention notice on 10.6.2026 and affidavit of service being filed on record, directions were taken to the effect that the origination summons be disposed of by way of written submissions which the Applicant complied as on 16.7.2026 save respondents who did not. **Submissions:** 7.The Applicant filed its written submissions dated 15th July 2026 where he submitted that the application dated 12th March 2026 seeks the invocation of the equitable doctrine of cy-près to preserve the 2nd Respondent’s charitable intention by directing that Plot No. 1216, Lower Msambweni, Voi be transferred to the Applicant for continued use as a place of worship. 8.The Applicant submits that the doctrine of cy-près is an equitable principle governing charitable trusts thereby empowering the Court to redirect charitable property to a purpose as near as possible to the donor’s original intention where the original purpose has become impossible, impracticable, or incapable of being achieved, thereby preventing the charitable gift from failing. The Applicant in support of his assertion cited the case of **William Charles Fryda v Assumption Sisters of Nairobi Registered Trustees & Another [2017] KEELC 1608 (KLR),** where the Court held that the doctrine applies where the original charitable purpose has failed, and the donor demonstrated a general charitable intention. The Applicant also relies on **Constance Tunda Vuko v Chairman and Secretary, Peace of Elshadai Temple & 2 Others [2021] eklr,** in which the Court applied the doctrine to ensure that donated property continued to serve the donor’s intended charitable purpose after the original objective became impossible to achieve. Finally, the Applicant prays that the application be allowed with costs pursuant to Section 27(1) of the Civil Procedure Act, which vests the Court with discretion to award costs. **Issues for determination:** 9.Upon considering the Affidavit evidence and written submissions of the applicant on record issues for determination as identified are: 1. Whether the Applicant has the requisite locus standi to institute the suit. 2. Whether, applicant is entitled to the reliefs sought 3. Who is to bear the cost? **Locus Standi:** 10. The Applicant has sued the Respondents in his representative capacity as a General Overseer and National Chairman of Evangelistic Saints Assembly Ministry (“ESAM”) hence duty bound to prove on a balance of probabilities that he has the requisite authority to institute the suit against the respondents. It is the duty of the applicant to prove his capacity to institute the suit against the Respondents. 11.The **Black's Law Dictionary, 11th ed.** (Bryan A. Garner ed., 2019) at p. 1178, defines Locus Standi as, “the right to bring an action or to be heard in a given forum”. The Court of Appeal in **Rugiri v Kinuthia & 3 others [2024] KECA 1601 (KLR**) stipulated that: **20.Locus standi is cardinal in civil proceedings because without it, a party lacks the right to institute and/or maintain the suit even where a valid cause of action subsists. It can be equated to a court acting without jurisdiction. In Amlers Precedents of Pleadings, Lexis Nexis LTC Harms et al 2018 on page 248 the following is said: The question of locus standi is in a sense procedural, but it is also a matter of substance. It concerns the sufficiency and directness of a person’s interest in the litigation to be accepted as a litigating party. It is also related to the capacity of a person to conclude a jural act. Sufficiency of interest depends on the facts of each case and there are no fixed rules.** **21.locus standi concerns the sufficiency and directness of a litigant’s interest in proceedings which warrants his or her title to prosecute the claim asserted and should be one of the first things to establish in a litigation.”** 12.The Applicant deposed in paragraph 2 of his affidavit in support dated 12.3.2026 and body of the originating summons that he is suing as the general overseer and national chairman of evangelistic saints’ assembly ministry known as ESAM. He deposed further that the intention of the 2nd Respondent was to have the plot inquestion used for church construction, church activities or having services which the 1st Respondent has breached. The Applicant has approached this court in his capacity as the overseer and chairman of ESAM which is a religious institution and not a private entity of the applicant. 13.Section 2 of the Societies Act defines Society as: - “society" includes any club, company, partnership or other association of ten or more persons, whatever its nature or object, established in Kenya or having its headquarters or chief place of business in Kenya, and any branch of a society, but does not, except in paragraphs (i) and (ii) of section 11(2)(f) of this Act, include: 14.Section 41 of the Societies Act provides for Proceedings against societies as follows: (1) Where a society is charged with an offence under this Act or any rules made thereunder, the society may appear by a representative, who may enter a plea on behalf of the society and conduct the society’s defence on its behalf. (2) In this section, "representative" in relation to a society means a person who the court is satisfied has been duly appointed in writing by the society to represent it, but a person so appointed shall not by virtue of such appointment be qualified to act on behalf of the society before any court for any purposes other than those specified in this section.” 15.The Applicant invoked section 56 of the Trustees Act which empowers the courts to authorize trustees to deal with trust property. The Applicant in this matter transacted with the 1st Respondent on behalf of ESAM hence the trustee of ESAM.I have perused the documents on record as presented by the Applicant but no authority to plead was filed by the applicant. further to the foregoing order 1 rule 8 of the civil procedure rules 2010 provides for filing a representative suit with authority of other members/person in whose behalf the suit is being filed. The affidavit evidence on record so to annexure marked HMM1 is the membership card that cannot be relied upon by the court as conferring legal standing upon the Applicant to institute the originating summons upon the Respondents. It is worth noting that Applicant has not annexed the resolutions of ESAM that mandated him to institute the Summons against the Respondents. In the absence of such evidence, the court ought to consider the capacity of incorporated bodies from suing. The Court in **Republic v Registrar of Societies & another; Kenya International Freight & Warehousing Association (Nairobi Branch) (Ex parte) [2025] KEHC 4789 (KLR)** stipulated: “**17. Onto the question of locus standi of unincorporated bodies which include societies and Nongovernmental Organizations, Community Based Organizations and PBO’s, the question that has been severally deliberated upon by Courts prior and after the promulgation of the 2010 Constitution is whether they can sue and be sued in their own names and that is the basis of the preliminary objection in this case. I will not belabor going into the pre-2010 Constitutional era as that is overtaken by events.** **18. Following the promulgation of the 2010 Constitution, incorporating therein Articles 22 and 260, those Articles have settled the question of whether unincorporated bodies can institute proceedings claiming violation or threatened violation of rights. That should be the commencement point as I delve deep into the arguments put forth by each of the parties”.** **19.According to the applicant, the legal standing to sue in these proceedings which are anchored in the Bill of Rights is derived from Articles 22 and 260 of the Constitution and that the decisions relied on by the respondents are High Court decisions which were made in per curiam as they offend the Mumo Matemu (supra) case decided by the Supreme Court”.** 16. Order 1 Rule 8 of the Civil Procedure Rules stipulates that **One person may sue or defend on behalf of all in same interest subject to being authorised by the other members of the group**. 1. *Where numerous persons have the same interest in any proceedings, the proceedings may be commenced, and unless the Court otherwise orders, continued, by or against any one or more of them as representing all or as representing all except one or more of them.* 2. *The parties shall in such case give notice of the suit to all such persons either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the court in each case may direct.* 3. *Any person on whose behalf or for whose benefit a suit is instituted or defended under subrule (1) may apply to the court to be made a party to such suit*.” 17. The Applicant produced Practising Licence No. 004 issued to Pastor Hebron M. Mwakindo of Life Transformation Church Voi but not the authority to plea on behalf of Applicant. Notably, the Applicant averred that the lease agreement was executed with the approval of the church committee, yet no resolution, authority, or other documentary evidence was produced to fortify his claim that the officials or members of ESAM authorized him to commence this representative suit. Consequently, the Applicant failed to establish the requisite authority to litigate on behalf of the church or its members. 18. The court finds that the Applicant has no locus standi to institute this suit as against the Respondents. **Legality of summons:** 19. The Applicant moved the court under section 56 of the Trustee Act (CAP 167), Section 3A, 37 (1), 63(e) of the Civil Procedure Act, and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The Applicant submits that, since the 1st Respondent is no longer utilizing the property for church activities, this Court should invoke the doctrine of cy-près to preserve the donor's charitable intention by directing that the property continue to be used for the intended religious purpose. 20. Section 56 of the Trustee Act (CAP 167), states as follows: - **“56. Power of court to authorize dealings with trust property** 1. Where, in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release or other disposition, or any purchase, investment, acquisition, expenditure or other transaction, is in the opinion of the court expedient, but cannot be effected by reason of the absence of a power for that purpose vested in the trustees by the trust instrument, if any, or by law, the court may by order confer upon the trustees either generally or in any particular instance the necessary power for the purpose, on such terms, and subject to such provisions and conditions, if any, as the court may think fit, and may direct in what manner any money authorized to be expended, and the costs of any transaction, are to be paid or borne as between capital and income. 2. The court may, from time to time, rescind or vary an order made under this section, or may make any new or further order. 3. (An application to the court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust. 21. Further, Order 37 rule 1 of the Civil Procedure Rules stipulates: **Who may take out originating summons and in respect of what matters [Order 37, rule 1]** ”The executors or administrators of a deceased person, or any of them, and the trustees under any deed or instrument, or any of them, and any person claiming to be interested in the relief sought as creditor, devisee, legatee, heir, or legal representative of a deceased person, or as cestui que trust under the terms of any deed or instrument, or as claiming by assignment, or otherwise, under any such creditor or other person as aforesaid, may take out as of course, an originating summons, returnable before a judge sitting in chambers for such relief of the nature or kind following, as may by the summons be specified, and as circumstances of the case may require, that is to say, the determination, without the administration of the estate or trust, of any of the following questions— 1.any question affecting the rights or interest of the person claiming to be creditor, devisee, legatee, heir or cestui que trust; 2. The ascertainment of any class of creditors, devisees, legatees, heirs, or others; 3. The furnishing of any particular accounts by the executors, administrators or trustees, and the vouching, when necessary, of such accounts; 4. The payment into court of any money in the hands of the executors, administrators or trustees; 5. Directing the executors, administrators or trustees to do, or abstain from doing, any particular act in their character as executors, administrators or trustees; 6. The approval of a sale, purchase, compromise or other transaction; 7. The determination of any question arising directly out of the administration of the estate or trust.” 22. Section 56 of the Trustee Act provides that an application as presented before court has to be initiated by the trustees or by any of them, or any beneficially interested under the trust. In the present case, the Applicant annexed a Lease Agreement dated 8.8.2025 executed between the 1st Respondent and self which leased the church premises from the 1st Respondent at a monthly rent of Kshs 10,000. The Applicant produced a mpesa payment transaction to demonstrate performance of the contract on his part. 23. The Applicant relies on a demand letter dated 13th January 2026 from Mutinda & Wambura Nthiga Advocates, acting for the 2nd Respondent, which refers to an agreement dated 9th July 2015 and demands that the 1st Respondent vacate and surrender the suit property. It is on the basis of that alleged donation that the Applicant invokes the cy-près doctrine, seeking to be the beneficiary of the purported donor’s charitable intention. It is necessary to examine the legal relationship, if any, between the Applicant and 2nd Respondent, (the purported donor of the property,) to determine whether the Applicant possesses the requisite standing to seek enforcement of the donor's alleged charitable intention. 24.The Court in **William Charles Fryda v Assumption Sisters of Nairobi Registered Trustees & another [2017] KEELC 1608 (KLR)** stipulated that: - “125. The definition of "charity" was ably given by Lord MacNaghten in the case of **IRC vs Pemsel (1891) AC 531** where he stated that: "Charity in its legal sense comprises four principal divisions: Trusts for the relief of poverty; trusts for the advancement of education; trusts for the advancement of religion; and trusts for other purposes beneficial to the community". Trusts or entities created for purposes of charity are referred to as charitable trusts. In England, charitable trusts are regulated under the Charities Act, 2011. Many other jurisdictions also have statutory provisions regulating the manner in which charitable trusts are managed. Australia has the Charities Act, 2013; and in Canada, there is a Charities Directorate aimed at regulating charities. Many States in the United States have laws regulating charities. I have however not seen any law that specifically regulates charities or charitable trusts in Kenya and I think that it is probably time that a statute of this nature be enacted. That does not however mean that in an appropriate case, the court cannot imply a charitable trust, depending on the particular circumstances of the matter. In the case of **Royal College of Surgeons of England vs National Provincial Bank Ltd (1952) 1 All ER, 984** the question arose whether the college was a charity. It was held that its object was the due promotion and encouragement of the study and practice of the art and science of surgery hence a charity. A more or less similar issue arose in the case of **Council of Law Reporting vs Attorney General (1973) All ER 1029** where the matter in question was whether 'The Incorporated Council of Law Reporting for England and Wales', ought to be registered under the Charities Act, 1960. The entity itself was incorporated under the Companies Act of England and was a company limited by guarantee. The English Court of Appeal held that the Association was established exclusively for charitable purposes and was accordingly entitled to be registered as a charity. 127. Property law in Kenya does provide for holding of properties in trust even when such trust is not noted in the register. The Registered Land Act (repealed in 2012 by the Land Registration Act, Act No. 3 of 2012) did provide at Section 28 as follows: -28. The rights of a proprietor, whether acquired on first registration or whether acquired subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; And b) unless the contrary is expressed in the register, to such liabilities, rights and interests as affect the same and are declared by section 30 not to require noting on the register: Provided that nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee. The current law is contained in Section 25 and 28 of the Land Registration Act, 2012. Section 25 provides as follows: - 25. (1) The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of court, shall not be liable to be defeated except as provided in The Judiciary of Kenya Doc IDENTITY: 43511542857596718990825243835 Tracking Number:OOBDQH2026 11/14 this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject; (a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and (b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. (2) Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee. Section 28 provides for overriding interests, which apply even where they are not noted in the register. At Section 28(b), trusts are overriding interests. -132. I agree with the submissions of Mr. Kihara, that this purpose is still alive and there is therefore no need to invoke the Cy-Près doctrine. The Cy-près doctrine applies where the purpose for which a charity has been established has failed or can no longer be achieved. If property is given in trust to be applied to a charitable purpose, and it becomes impossible or impracticable or illegal, to carry out the particular purpose, and if the settlor manifested a more general charitable intention to devote the property to charitable purposes, the trust will not fail but the court will direct the application of the property to some charitable purpose which falls within the general charitable intention of the settler (See American Law Institute, Restatement of the Law (Second), Trusts (ALI Publishers, St Paul Minn,1959) Vol II, § 399, p 297 and for a good elaboration on the Cy-Près doctrine, see, Rachael P. Mulheron, The Modern Cy-Près doctrine, Routledge,Taylor & Francis Group, 2006). A charitable purpose can either fail from the outset, that is the purpose can never be put into effect, or subsequently, that is, the purpose has become impossible to continue being effective. (See generally, Re Robinson, Besant vs German Reich, (1931) Ch 122; Re Slevin (1981) 2 Ch 236; Re Tacon (1958) Ch 477; and Re Woodhams (1981) 1 WLR 493). In such an instance, the court is permitted to apply the funds or other assets of the trust to another purpose closest to the original aim of the charitable purpose that has failed (See Re Avenon's Charity (1913) 2 Ch 261). 133. The charitable purpose herein has not failed and therefore there is no need to invoke the Cy-Près doctrine. My holding is that ASN, despite being the registered proprietors of the land, and despite being the legal owners, are holding the suit properties under a form of a charitable trust aimed at providing health care to the poor and for that reason, they cannot assign the same to Regina Pacis University, and therefore the purported assignment of land to Regina Pacis University is null and void. Regina Pacis University therefore cannot succeed in their claim that they are entitled to exclusive possession and/or ownership of the land parcel LR No. 27229. 25. It is worth to note that the agreement dated 9th July 2015 was not produced before this court. Consequently, the Court is unable to ascertain its terms, legal effect, or whether it created a charitable trust or imposed conditions on the donation. The contractual relationship established on record by the Applicant exist between the 1st Respondent and the Applicant. The relationship between 1st and 2nd respondent has not been established by the Applicant to ascertain the nexus between them and the subject matter before court. At close of the proceedings, it is not established by the Applicant that the 2nd respondent intended to have the building for charitable purposes to qualify under the doctrine of cypres. 26. 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. Moreso the Applicant failed to establish any legal or beneficial interest in the donated property that would entitle him to invoke the cy-près doctrine. **Final Orders** In view of the foregoing the Court finds as follows: - 1. The Applicant has no locus standi to institute the originating summons against the respondents. 2. The originating summons dated 12.3.2026 is struck out with costs in the summons. It is ordered accordingly. **DATED, SIGNED AND DELIVERED ON THIS 31ST DAY OF JULY 2026** **J.A. ORWA** **JUDGE.** **In presence of:** **Applicant** **Court Assistant: Mr. Letisia** **But absence of the Respondents**