https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3929

Hi Jung Oh Children’s Home v Life Reformation Centre & 5 others (Environment and Land Case E223 of 2022) [2026] KEELC 3929 (KLR) (29 June 2026) (Ruling) Neutral citation: [2026] KEELC 3929 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case E223 of 2022 CG Mbogo, J June 29, 2026 Between Hi Jung Oh Children’S Home Plaintiff and Life Reformation Centre 1st Defendant The National Land Commission 2nd Defendant Nairobi City Council 3rd Defendant Sospeter Gathahu Mumbi 4th Defendant The Ethics and Anti-Corruption Commission 5th Defendant and Department of Children Services Proposed Defendant Ruling 1.Before this court for determination is the notice of motion dated 24th March, 2025 filed by the plaintiff/applicant and it is expressed to be brought under Article 159 of the Constitution, Sections 1A, 1B, 3A and 100 of the Civil Procedure Act, Order 1 Rules 3, 10(2) & (4), Order 8 Ruless 3, 5, and 7, Order 40 Rule 1,8 and Order 51 Rule 1 of the Civil Procedure Rules and Section 13 (5) of the Environment and Land Court Act seeking the following orders:- 1.Spent. 2.That this honorable court be pleased to issue orders enjoining the Department of Children’s Services as the 6th defendant in this matter. 3.That subsequently and upon issuance of the enjoinment orders sought above, this honorable court be pleased to issue orders making the orders of Hon. Justice O.A Angote issued on the 27th day of January, 2023 applicable to the 1st defendant/respondent and the proposed 6th defendants herein pending the hearing and determination of this application. 4.That subsequently and upon issuance of the enjoinment orders sought above, this honorable court be pleased to issue orders making the orders of Hon. Justice O.A Angote issued on the 27th day of January, 2023 applicable to the 1st respondent and the proposed 6th defendants herein pending the hearing and determination of this suit. 5.That pending the hearing and determination of this application an order does issue compelling the 1st defendant/respondent and the proposed 6th defendant/ respondent, their agents, servants, and/or any other person acting under their instructions to immediately vacate the suit property and restore the applicant to full and unimpeded possession thereof, in accordance with Section 152E of the Land Act. 6.That pending the hearing and determination of the main suit an order does issue compelling the 1st defendant/respondent and the proposed 6th defendant/respondent, their agents, servants, and/or any other persons acting under their instructions to immediately vacate the suit property and restore the applicant to full and unimpeded possession thereof, in accordance with Section 152E of the Land Act, 2012. 7.That a mandatory Injunction do issue compelling the 1st defendant/respondent and the proposed 6th defendant/respondent, their agents, servants, and/or any other persons acting under their instructions to immediately vacate the suit property and restore the applicant to full and unimpeded possession thereof, in accordance with Section 152E of the Land Act, 2012, which prohibits unlawful eviction and occupation of private property without due process. 8.That a declaration do issue that the actions of the 1st defendant/respondent and the proposed 6th defendant/respondent, including but not limited to the unlawful seizure, trespass, occupation, and control of the suit property known as NAIROBI/BLOCK 110/686, are illegal, unconstitutional, and in violation of the applicant’s proprietary rights as enshrined under Article 40 of the Constitution of Kenya, 2010, which guarantees the right to property and protection from arbitrary deprivation. 9.That a permanent injunction restraining the 1st defendant/respondent and the proposed 6th defendant/respondent, their agents, officers, servants, and/or any other persons acting under their instructions from further trespassing upon, encroaching, interfering with, or in any manner taking possession of the suit property, in line with the applicant’s constitutional rights under Article 31(c) of the Constitution, which guarantees the right to privacy, including the right not to have one’s property seized, searched, or unlawfully entered. 10.That an order directing the Officer Commanding Station (OCS) Central Police Station to enforce compliance with the existing court orders restraining the respondents from interfering with the applicant’s possession and occupation of the suit property, pursuant to Section 24 of the National Police Service Act, 2011, which mandates the police to maintain law and order and enforce lawful court orders. 11.That this court does issue an order of contempt citing the 1st defendant/respondent together with the OCS Kasarani Police Station and the County Commissioner, Kasarani Sub-County, for blatant disobedience of court orders, and imposing such sanctions and penalties as this honorable court deems just and expedient, in accordance with Section 5 of the Judicature Act, Cap 8 and Order 40 Rule 3 of the Civil Procedure Rules, 2010, which empower courts to punish for contempt of court and ensure compliance with judicial orders. 12.That a declaration does issue that any purported action by the proposed 6th defendant/respondent under the guise of protecting children must comply strictly with the Children Act, 2022, particularly Sections 7, 8, 119, and 120, which outline the procedure for child protection, removal, and placement, and Article 47 of the Constitution, which guarantees the right to fair administrative action before any interference with one’s rights. 13.That pending the hearing and determination of this suit, the OCS Kasarani Police Station and the County Commissioner Kasarani Sub County be restrained and or barred from interfering with the running of the affairs of Hi Jung Oh Children’s without the express permission of this Honorable Court. 14.That cost of this application be provided. 2.The application is premised on the grounds inter alia that the proposed 6th defendant/respondent has unlawfully seized possession of the suit property known as Nairobi/Block 110/686 under the pretext that the children accommodated are engaged in activities deemed socially and morally inappropriate. The application is supported by the affidavit of Byum- Soo Oh, trustee of the plaintiff/applicant, sworn on even date. The plaintiff/applicant deposed that it is the registered owner of the suit property and have been operating a children’s home and a secondary school within the suit property since the year 1999. Further, that they have complied with all legal and regulatory requirements governing children’s welfare and have never been sanctioned for any violations by the Department of Children Services (DCS) or any other relevant authority. 3.However, on 19th March 2025, officers from the proposed 6th defendant/respondent, the Department of Children Services, accompanied by the OCS Kasarani Police Station and the County Commissioner, Kasarani Sub-County, forcefully gained entry into the suit property under the pretext that children within the institution were engaging in "socially and morally bad behavior." In the process, the officers violently trespassed onto the suit property, arrested staff members, changed locks, and stationed armed police officers at the entrance, denying access to all, including legal counsel and medical personnel attending to him since he has been diagnosed with cancer. 4.The plaintiff/applicant deposed that the said takeover was conducted despite existing court orders issued by Justice O.A. Angote on 27th January, 2023 barring the defendants/respondents from entering, taking possession, or interfering with their lawful occupation of the suit property. Further, that Justice M.D. Mwangi confirmed the said orders on 16th October, 2023 directing the defendants/respondents to cease any acts of trespass or interference with the suit property, yet they have blatantly disregarded the same. Further, that the forceful eviction, detention of staff, and placement of security guards at the property amounts to gross abuse of power, arbitrary deprivation of property, and violation of fundamental rights and freedoms. 5.The plaintiff/applicant is apprehensive that unless this court intervenes, the defendants/respondents will permanently dispossess them of the suit property and irreparably disrupt the institution’s operations, to the detriment of the vulnerable children it serves. 6.The application was opposed by the 1st defendant/respondent through the replying affidavit of Cephas Njuguna Chege sworn on 4th April, 2025. He deposed that the signature on the plaintiff/applicant’s supporting affidavit is likely to have been superimposed, for reasons that when the 1st defendant/respondent took over the management of the home as advised by the secretary children services on 4th March, 2005, they found that the elderly founder of the home in a very bad state of health, and the church in consultation with the said founder member reached out to Dr. Gikonyo of Karen Hospital to offer him treatment as he was underweight and his dwelling house was neglected. Contrary to the averments in the supporting affidavit, the plaintiff/applicant’s management’s motive is to remove the children and sell the property which is against the wishes and objectives of the founding member, who is currently very happy with the actions of the secretary, children services for the temporary change in the management of the affairs of the home and for removing the young men who were arrested during the inspection and whose activities in the home were not explained. 7.Further, that as advised by their advocates on record, the 1st defendant’s position is that the plaintiff/applicant has no legal capacity to institute this suit and/or the current application and neither does the 1st defendant/respondent have the legal capacity to be sued. It was deposed that the 1st defendant/respondent has been taking care of all the financial needs of the home including but not limited to paying school fees for the minors outside the home after the plaintiff/applicant’s management closed the school inside the home and refused to heed to pleas to open it and allow the minors to get education. 8.The 1st defendant/applicant deposed that the plaintiff/applicant has filed numerous applications alluding this matter to a property dispute which does not exist, as the land was allocated to the trustees of the home for a specific purpose in the special conditions of the lease, that it will be used for purposes of a children’s orphanage and primary school, and failure to adhere to this means the land will revert back to the government. 9.On 20th March, 2025 the 1st defendant/respondent received a copy of a letter written by the secretary children services addressed to the Sub-County children's officer directing them to take up the management of the plaintiff/applicant’s home as managers for a period of two months under the close supervision of the Sub-County children officer. These directions were given after inspection was carried out on the suit property which was found to be in violation of the Children Act. Further, that the home had been converted into a storage facility for keeping nile crocodile belly skins and leather tanning chemicals, which are highly flammable and toxic. 10.The 1st defendant/respondent deposed that the home is under rehabilitation, and its sole responsibility is in line with the mandate of the children department which is to safeguard the welfare of the children, in accordance with the provisions of the Children Act. The 1st defendant/respondent denied being a trespasser to the home but a reliable ally whose presence and participation in the affairs of the plaintiff/applicant. 11.The application was further opposed vide the replying of Christine Ireri for the 3rd defendant/respondent sworn on 1st April, 2025. She deposed that the intended 6th defendant/respondent are not necessary parties to this suit and that the issues in this case can be effectively adjudicated upon and settled without their joinder. Further, that bringing on board the 6th intended defendant/respondent will bring in unnecessary new issues that will delay the settlement of this matter. It was deposed that the power of the court under Order 1 Rule 10 (2) of the Civil Procedure Rules is discretionary, which discretion must out of necessity be exercised judicially. The 3rd defendant/respondent deposed that justice would be best served by maintaining the focus of this proceeding on the substantive merits of the case at hand, without extraneous and extrinsic diversions. 12.The 5th defendant/respondent filed a notice of preliminary objection dated 16th May, 2025 opposing the instant application on the following grounds:- 1.That the application dated 24th March, 2024 is incompetent as the proposed 6th defendant (Department of Children Services), lacks legal capacity to sue in the manner it has purported herein. 2.That the proposed 6th defendant has no legal capacity to be sued in its own name as it is not a legal public entity. 3.That application dated 24th March 2024, should be struck out in its entirety with costs to the 5th defendant/respondent. 13.Alexander Maema Makua, trustee of the plaintiff/applicant filed a further affidavit sworn on 9th June, 2025. He deposed that despite this matter being active in court, the 1st defendant/respondent and the 6th proposed defendant/respondent having been served with the pleadings hereof, they continue to conduct illegal development on the suit property to the detriment of the plaintiff/ applicant. It was further deposed that the 1st defendant/ respondent and the proposed 6th defendant/ respondent have illegally leased the suit property to an entity by the name of Nexus Ridge School, which tenant has proceeded to bring down a perimeter wall and erected a gate accessing the suit property from a different gate other than the one that has been earmarked for that purpose. 14.The application was canvassed through written submissions. The plaintiff/applicant filed written submissions dated 3rd February, 2026. The 1st defendant/respondent filed written submissions dated 10th February, 2026. I have considered the pleadings filed, the rival arguments and the written submissions filed. The issues for determination is whether the notice of preliminary objection has merit and whether the application has merit. 15.The plaintiff/applicant who is the registered owner of the suit property contended that the 1st defendant/respondent and the proposed 6th defendant/respondent trespassed onto the suit property and are undertaking illegal construction thereon. The plaintiff/applicant seeks among other reliefs, the joinder of the proposed 6th defendant/respondent as a party to this suit. The 5th defendant/respondent filed the preliminary objection dated 16th May, 2025 challenging the capacity of the proposed 6th defendant to be sued. On the other hand, the 1st defendant/respondent has raised issue with the plaintiff’s/applicant’s capacity to institute this suit, which must be addressed initially before the substantive notice of motion since it may dispose of the entire application and suit. 16.A preliminary objection was described in the famous case of Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd (1969) EA 696 as:-“So far as I am aware, a preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration.” 17.Capacity to sue and be sued is certainly a preliminary point of law, without it a party lacks the locus standi to be heard in court. In the case of Law Society of Kenya Vs Commissioner of Lands & Others, the high court at Nakuru in Civil Case No. 464 of 2000, held that:-“Locus standi signifies a right to be heard, A person must have sufficiency of interest to sustain his standing to sue in a court of law.” 18.Further in the case of Alfred Njau and Others Vs City Council of Nairobi (1982) KAR 229, the court also held that:-“the term locus standi means a right to appear in court and conversely to say that a person has no locus standi means that he has no right to appear or be heard in such and such proceedings.” 19.Section 2 of the Children Act Cap 141 defines a charitable children’s institution to mean:-“charitable children’s institution" means a children’s home or institution established by any person, either alone or in association with others, or by a civil society organisation and which has been duly registered with the council for the purpose of managing programmes for the care, protection, rehabilitation and re-integration or control of children; 20.It so appears that the plaintiff/applicant falls within the ambit of a charitable children’s institution. However, that does not give them the capacity to sue or be sued in its own names. From their certificate of lease over the suit property, the proprietor as registered are the trustees of the home and not the home itself, meaning that they also do not have the capacity to hold immovable property in the home’s name, and as such is not a body corporate. 21.In a similar predicament, the court in the case of Peter Taracha & another v International Pentecostal Holiness Church & another [2016] KEHC 6482 (KLR) found that:-“The record of the trial court shows that the 1st respondent was registered under Section 10 of the Societies Act on 3rd March, 2009 as evidenced by the certificate of registration produced as Pexhbit 1 while the 2nd respondent was registered as a charitable children’s institution under the Ministry of Gender, Children and Social Development.There is therefore no doubt that the respondents are not and were not body corporates with legal capacity to sue or be sued at the time the suit in the lower court was instituted. Case law abounds to the effect that entities registered under the Societies Act or other unincorporated bodies are not legal persons with the capacity to sue in their own names. They can only sue or be sued either through their officials, members or registered trustees in the case of registered trusts.” 22.Similarly, the court in Ematundu Kaper Richards Orphanage v Justine Mutobera & 4 others [2019] KEELC 1677 (KLR) found as follows:-“The community members ought to follow the said laid down procedure in Order 1 rule 8 of the Civil Procedure Rules. The plaintiff (Ematundu) does not exist as it was merged with Akhonya Trust children home hence incapable of instituting any legal suit. I find that, Ematundu Kasper Richards Orphanage is not a legal entity which can sue and be sued on its own name. I find the preliminary objection has merit and I uphold the same. This suit is struck off with costs to the defendants.” 23.Since there is no evidence of the plaintiff/ applicant’s incorporation as a body corporate, the plaintiff therefore lacks the capacity to institute this suit in its own name. 24.As for the proposed 6th defendant/respondent, the Children’s Act under Section 38 provides for the office of the secretary of children’s services, who has the mandate to oversee and co-ordinate all government functions relating to children’s services. Section 39(2) thereof provides that:-“Without prejudice to the powers of the Director of Public Prosecution, the secretary shall have the power to institute proceeding in respect of any contravention relating to child maintenance, child neglect and abuse.” 25.Further, Section 41 establishes the National Council for Children’s Services, which has the following characteristics as provided by the Act:“There is established a council to be known as the National Council for Children’s Services, which shall be a body corporate with perpetual succession and a common seal.(2)The Council shall be capable, in its corporate name, of—a.suing and being sued;b.taking, purchasing or otherwise acquiring, holding, charging and disposing of movable and immovable property;c.entering into contracts;d.receiving grants and gifts in support of projects, programmes and actions designed to promote and protect the rights of the child; and doing or performing all such other things or acts necessary for the proper performance of its functions under this Act which may lawfully be done or performed by a body corporate.” 26.Therefore, it is the National Council of Children’s Services which has the capacity to sue and be sued in court proceedings and not the department of children services post the enactment of the Children’s Act Cap 141. It is evident that the proposed defendant lacks the capacity to be joined and sued to this suit as named. Therefore, the notice of preliminary objection dated 16th May, 2025 is hereby upheld. The notice of motion dated 24th March, 2025 as well as the entire suit is hereby struck out. I make no orders as to costs.It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY THIS 29TH DAY OF JUNE, 2026.HON. MBOGO C.G.JUDGE29/06/2026.In the presence of:Ms. Benson Agunga - Court assistantMs. Ruth Kiunga holding brief for Mr. Erick Theuri (Sc) in E223/2022 & all theDefendants in ELCC E426/2024Ms. Ochola for EACC in E223/2022Ms. Wanini for the 2nd Defendant in E223/2022Mr. Onsembe holding brief for Mr. Ongegu for the 1st DefendantMr. Kipkorir holding brief for Mr. Kiplang’at for the 1st Defendant in E223/2022No appearance for the Plaintiff