https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4666

Qwetu Savings & Credit Cooperative Society Limited v Mwakio & 47 others (Environment and Land Case E003 of 2026) [2026] KEELC 4666 (KLR) (Environment and Land) (16 July 2026) (Ruling) Neutral citation: [2026] KEELC 4666 (KLR) Republic of Kenya In the Environment and Land Court at Voi Environment and Land Environment and Land Case E003 of 2026 JA Orwa, J July 16, 2026 Between Qwetu Savings & Credit Cooperative Society Limited Plaintiff and Fredrick Mwakio & 47 others Defendant Ruling A.Introduction: 1.The Defendants/Applicant’ Notice of Motion dated 20.5.2026 is brought pursuant to Order 51 Rules 1, 40 Rule 1 of Civil Procedure Rules, 2010, Sections 1A , 1B, and 3A of the Civil Procedure Act 2010. The application is supported by the affidavit of Salim Mwambale, sworn on 20.5.2026. The Defendants/Applicants seek orders as follows: -. 1.Spent. 2.This Honorable Court be pleased to issue an order varying its orders or directions made and or given on the 6th Day of May 2026 regarding hearing of the main suit of this matter. 3.This court be pleased to issue an order to strike out the Plaintiff’s suit against the Defendants for lack of Locus standi. 4.This court be pleased to grant leave to the Defendants to file their Defence and counterclaim out of time. 5.This Honorable court can grant any other reliefs it deems fit in the interest of justice. 6.costs of this Application be provided for. 2.The Application is premised on following grounds:“ 1.This matter was filed earlier this year and the Defendants came aware of the same on 13/5/2026 via the Newspaper service. 2.The Defendants have been in occupation and possession of the suit property for many years by virtue of being legitimate squatters on the suit property. 3.The Plaintiff is different from the purported owner of the suit property. 4.Therefore the Plaintiff lacks capacity and/ or locus standi to file the current suit before this Honorable court. 5.There is need to grant the Defendants leave to defend this suit by filing their Defence and counterclaim out of time. 6.This court is clothed with the relevant powers to grant the reliefs sought herein and it is in the interest of Justice and fairness this Application be allowed. 7.No harm and/or prejudice will be occasioned upon the Plaintiff/Respondent when the orders sought herein are granted. 3.The Application is supported by the Affidavit of Salim Mwambale sworn on the 20.5.2026, written submissions dated 15.6.2026 and annexed authority to plead(sm-1b), draft statement of defence and counterclaim (2b), title deed (Taita Taveta Teachers Sacco Academy) and Ccertificate of registration of Qwetu savings and credit society limited(2a) 4.The Respondent/Plaintiff neither filed a replying affidavit in opposition of the application nor written submissions as directed by the court on the 16.6.2026 despite having been served. 5.The Applicants/Defendants’ dispute ownership of the suit property namely Taita Taveta /Mwangea “B” Scheme (Ikanga)156 registered in the name of Taita/Taveta Teachers Sacco Academy by Plaintiff/Respondent thereby averring want of locus standi on the part of Plaintiff/Respondent to institute the proceedings as against them. 6.The Defendants/Applicants deposed that they became aware of the suit on 13.5.2026 through a daily newspaper service dated 16.3.2026 hence the filing of the Application. Further the Applicants /Defendants contend that they have been in occupation and possession of the suit property for many years therefore have a legitimate claim over the suit land as against the Plaintiff/Respondent through the annexed draft statement of defence and counterclaim. 7.The Applicants/Defendants deposed that the application has been filed without any inordinate delay and urged the court to strike out the suit for want of locus standi of the plaintiff to institute suit against them. 8.Alternatively The Applicants urged the court to grant them leave to file the suit out of time and costs be awarded to them. 9The Respondent despite having been served with the application filed No replying affidavit or grounds of opposition to the Applicant’s application. B. Defendants/Applicants submissions: 10.The Defendants/Applicants vide their written submissions dated 15.6.2026 submitted that the registered owner of suit land number Taita/Taveta Mwangea B Ikanga Scheme /156 is Taita Taveta Teachers Sacco Academy and not the plaintiff/Respondent who has failed to establish the nexus between Taita Taveta Teachers Sacco Academy -( registered owner of suit land) and self hence lacks locus Standi to institute the proceedings against them citing the cases of Meli v. Mwela & Another; Rono & 3 Others (Interested Parties) (Environment & Land Case 38 Of 2019) [2023] KEELC 17211 (Klr) (5 May 2023) (Ruling); Francis Mwangi Mugo v. David Kamau Gachago [2017] Eklr; Energoprojekt Engineering and Contracting Company Limited v. Stephen Kamunge & 6 Others [2020] KEELC 2811 (Klr in support of their assertion. 11.The Applicants/Defendants in reliance on the case of Pinnacle Projects Limited v. Presbyterian Church of East Africa, Ngong Parish & Another [2018]eklr urged the court to exercise its unfettered discretion by extending time within which to file and serve their defence and counterclaim upon the plaintiff and granting them a chance to defend their legitimate claim over the suit land as they were made aware of existence of the suit on 13.5.2026 through a newspaper daily dated 16.3.2026 and their draft statement of defence and counterclaim raises triable issues which can only be ventilated at the hearing of the main suit. The Applicants submitted further that they are deserving of enlargement of time for variation of the court order dated 6.5.2026 as they filed the Application without any inordinate delay, shown reasonable cause for the delay and no prejudice will be occasioned to the respondent should the application be allowed citing the case of Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] KESC 12 (KLR) and Kwikas DT Sacco v Mbaya [2026] KECOPT 195 (KLR). 12.The Applicants/Defendants submitted that costs follow events pursuant to section 27 of the Civil Procedure Act,2010 hence entitled to costs as their application is not opposed by the Plaintiff/Respondent citing the case of Party of Independent Candidate of Kenya v. Mutula Kilonzo & 2 Others {2013] KEHC 5939 (Klr) which cited with Approval the case of Julius Irungu Wairia v Lilian Kagwiria [2018]; Morgan Air Cargo Limited v. Everest Enterprises Limited [2014] Eklr and and Reid, Herwitt & Co v. Joseph, Air 1918 Cal 717 and Myers v. Defries (1880) 5 Ex D 180. C. Issues for determination: 13.Having considered the Affidavit evidence, Annexures in support of the motion and Written Submissions on record the issues for determination by the court are:a.Whether the Plaintiff's suit ought to be struck out for want of locus standi.b.whether the Defendants should be granted leave to file their Defence and Counterclaim out of time.c.Who should bear the costs of the Application? D. Analysis and determination: 14.On locus standi of the plaintiff to file the suit against the Defendants/Applicants A certificate of registration and change of name were filed on record by the Plaintiff /Respondent both dated 26.11.2014 at the time of filing the plaint confirming change of name from Taita Taveta Teachers savings and credit cooperative society limited to Qwetu savings and credit society cooperative society limited save for the certificate of title number Taita Taveta /Mwangea “B” Scheme(Ikanga)156 in the name of Taita Taveta Teachers Sacco Academy. 15.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”. 16.The Court of Appeal in Rugiri v Kinuthia & 3 others [2024] KECA 1601 (KLR) stipulated that:“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.” 17.Based on the cited decided cases above It is trite that a party who lacks legal standing in a matter cannot initiate and or prosecute any civil proceedings against a party unless nexus is established between subject Respondent and subject matter in issue. In the instant case it is upon the Plaintiff/Respondent to ascertain its nexus with the suit property known as Taita Taveta/Mwangea 'B' Scheme (Ikanga)/156 registered in the name of Taita Taveta Teachers Sacco Academy as submitted by the Applicant/Defendants 18.The Plaintiff/Respondent filed the Minutes of 15.6.1999 whereby the committee vide Min. Dec.12.25/99 deliberated on the issuance of land to Taita/Taveta Teachers Sacco Academy to develop a modern educational institution along side the plaint on 15.1.2026 .The committee approved the proposal for a modern educational institution to be sponsored by the Taita/Taveta Teachers’ Sacco Academy vide min. Dec.10/99 of 25.12. 19.It is on record that the plaintiff is registered under the cooperative societies Act chapter 409 laws of Kenya. The plaintiff filed the suit claiming that its land has been encroached into by the Defendants and annexed the title deed to the suit land registered in the name of Taita Taveta Teachers Sacco Academy not Qwetu savings and credit cooperative society ltd hence the disputed locus standi of plaintiff to institute suit against the Defendants/Applicants. The plaintiff is duty bound to ascertain the nexus between Taita Taveta Teachers Sacco Academy and itself to warrant sustainability of the suit against the defendants/applicants. A perusal of the Plaintiff/Respondent’s bundle of documents especially the Certificate of Change of Name No. CS/2523 show that the Plaintiff/Respondent was initially registered as Taita Taveta Teachers Savings and Credit Cooperative Society Ltd which later changed to Qwetu Savings and Credit Co-operative Society Ltd on 26th November, 2014. Furthermore, the minutes of 15.6.1999 confirm that the committee approved issuance of land to Taita Taveta Teachers Sacco Academy to develop a modern educational institution, not Taita Taveta Teachers savings and credit cooperative society limited. 20.Section 8 of the Cooperatives societies Act (cap 409) provides that an amendment which changes the name of a co-operative society shall not affect any right or obligation of that society or any of its members and any legal proceedings pending may be continued by or against the society under its new name. From the title deed annexed on record by the defendants/Applicants the suit property(Taita Taveta/Mwangea 'B' Scheme (Ikanga)/156) is registered in name of Taita Taveta Teachers Sacco Academy, not Taita Taveta Teachers Savings and Credit Cooperative Society limited which changed its name to Qwetu savings and credit cooperative society limited on the 26.11.2014. 21.Article 24 and 25 of the Land Registration Act 2012 provides that a certificate of registration confers absolute and indefeasible ownership rights /title to the registered owner thereof which title can only be challenged if its acquisition was illegal, fraudulent and through misrepresentation of facts as restated in the case of Buchere vs Indimuli (2025) eklr. 22.Similarly Article 40(6) of the constitution of Kenya 2010 upholds indefeasibility of title to land which can only be challenged on proof that it was obtained fraudulently, illegally and /or through misrepresentation of facts. To date the registered owner of the suit land (TAITA TAVETA/MWANGEA 'B' SCHEME (IKANGA)/156 is Taita Taveta Teachers Sacco Academy not Qwetu Savings and Credit cooperative Society ltd. 23.It is trite that the burden of proof in civil matters is on a balance of probabilities. The Defendants have annexed material evidence before court challenging ownership of the disputed land by the Plaintiff. It was upon the plaintiff/Respondent to rebut the assertion of the defendants/applicants by explaining the nexus between Taita Taveta Teachers Sacco Academy –(registered owner of the suit land) and self (Qwetu Savings and Credit cooperative Society limited). 24.The Court of Appeal in the case of Gideon Letoya ole Hapu & another v Estate Finance Company of Kenya limited [2019] KECA 860 (KLR) stipulated that: “The learned Judge did not address or reconcile the contentions and so the evidence remained incredible. As it is now, the record does not reflect the legal existence of the respondent as no evidence of its existence was proffered. In Victoria Commercial Bank Ltd v Devchand Shah Punja (supra) the High Court held that a change of name can only be established by producing a certificate of change of names of a company and a party has to comply with the provisions of the Companies Act. Section 20 of the former Companies’ Act required a company to notify the registrar of a change of names to enable the Registrar to enter the new name in the record in place of the former name and to issue the company with a certificate of a change of names and notify the public of such change through the Kenya Gazette. In that case, the court held that since plaintiff had failed to produce a certificate from the Registrar of Companies to establish that it succeeded the company that sued, then it could not sue under the new name and its claim against the defendant failed. I am in total agreement with those views. The Appellants have further cited the authority of KPLC v Benzene Holdings Limited t/a Wyco Paints (2016) eklr where this Court held that once a court is made aware that the plaintiff is non-existent and therefore incapable of maintaining an action, it cannot allow the action to proceed. The demand letters sent to the 1st defendant ostensibly from the respondent were sent by an entity known as Consolidated Bank Mortgage Limited. It was imperative upon the respondent to clear the air or to put its house in order by establishing the nexus or succession between it and the appellants. It failed to discharge its obligation on a contested issue. It failed to adduce sufficient evidence to prove that indeed it existed legally at the time of filing suit and had the capacity to institute suit against the appellants. “The above finding is in my view sufficient to dispose of the appeal since lack of capacity to sue on the respondent’s part meant that the appeal had no foundation.” 25.Despite proof of change of names from Taita Taveta Teachers Savings and Credit Cooperative Society to Qwetu Credit and Savings Cooperative Society limited, there is no evidence connecting the Plaintiff/Respondent with the registered owner of the suit land at close of the hearing of the application. In absence of an explanation as to nexus between the Applicant/Defendants and registered owner of the disputed land I find that the Respondent/Plaintiff has no locus standi to institute the suit as against the Defendants/Applicants. 26.Order 7 rule 1 and 5 of the Civil Procedure Rules 2010 provide for mandatory timelines of 14 days within which A defendant shall file and serve a statement of defence upon the plaintiff after entering an appearance and filing an affidavit as such. The Applicant/Defendant submitted that upon being aware of existence of suit against them on 13.5.2026 filed the motion on 20.5.2026 hence not guilty of inordinate delay. 27.Order 50 Rule 6 of the Civil Procedure Rules provides that:“Where a limited time has been fixed for doing any act or taking any proceedings under these Rules, or by summary notice or by order of the court, the court shall have power to enlarge such time upon such terms (if any) as the justice of the case may require, and such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed:Provided that the costs of any application to extend such time and of any order made thereon shall be borne by the parties making such application, unless the court orders otherwise.” 28.Section 59 of the Interpretation and General Provisions Act, Cap 2 Laws of Kenya, provides that:-“Where in a written law time is prescribed for doing an act or taking proceedings, and power is given to a court or other authority to extend that time, then unless a contrary intention appears, the power may be exercised by the court or other authority although the application for extension is not made until after the expiration of the time prescribed.” 29.Similarly Article 50 (1) of the Constitution 2010 provides that “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.” 30.In the case of Board of Trustees of African Independent Pentecostal Church of Africa Church v Peter Mungai Kimani & 12 others [2016] (KLR) it was restated that the power to extend time for doing an act by a party is discretional which discretion is exercised judiciously depending on the circumstances of each case and applicant proving that the application is made without inordinate delay, offering a reasonable explanation for the delay , no injustice shall be occasioned to the respondent and enlargement is necessary for effectual adjudication of the issues in controversy. 31.The Supreme Court in the case of Salat v Independent Electoral and Boundaries Commission & 7 others [2014] KESC 12 (KLR) summed up the applicable considerations for grant of extension of time as follows: - “. From the above caselaw, it is clear that the discretion to extend time is indeed unfettered. It is incumbent upon the applicant to explain the reasons for delay in making the application for extension and whether there are any extenuating circumstances that can enable the court to exercise its discretion in favour of the applicant. 85. This being the first case in which this court is called upon to consider the principles for extension of time, we derive the following as the under-lying principles that a court should consider in exercise of such discretion: Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court; A party who seeks for extension of time has the burden of laying a basis to the satisfaction of the court Whether the court should exercise the discretion to extend time, is a consideration to be made on a case to case basis; Whether there is a reasonable reason for the delay. The delay should be explained to the satisfaction of the court; Whether there will be any prejudice suffered by the respondents if the extension is granted; Whether the application has been brought without undue delay; and Whether in certain cases, like election petitions, public interest should be a consideration for extending time. What is the position of the Court of Appeal application No Civil Application Sup No 5 of 2014(UR 2014) seeking certification? Is a letter to the Registrar sufficient to withdraw an application before the Court of Appeal? Paragraph 86.” 32.The Defendants/Applicants filed the present Application on 20th May 2026, immediately after 13.5.2026 and prior to the scheduled hearing date of 16th June 2026).The Applicants demonstrated their commitment to defending the suit by annexing a draft statement of defence and counterclaim which raise triable issues and in particular a claim of adverse possession over the suit land in the draft counterclaim which necessitates determination between the parties during hearing of the main suit .The Applicants/Defendants demonstrated the reason for delay therefore deserving of judicial intervention. Equally the Applicants having established reasonable cause to warrant the court exercise its unfettered discretion in their favour without occassioning an injustice to the Respondent should be accorded a chance to be heard in accord with article 50 of the constitution of Kenya 2010. 33.Based on the cited cases above, this court has unfettered discretion to extend time for compliance by a party where time has expired in the interest of balancing justice between disputants subject to proof that plaintiffs have locus standi to sustain the suit against the Defendants/Applicants. Had the plaintiff proved its nexus with the registered owner of the suit property, I would have extended time and granted the defendants/applicants 14 days from the date of the ruling within which to file and serve their statement of defence and counterclaim upon the plaintiff and corresponding leave of 14 days to the plaintiff/respondent to file and serve their reply to the defence and defence to counterclaim from the date of service. At this juncture granting the relief of extension of time within which the defendants/applicants should file and serve their statement of defence and counter claim upon the plaintiff shall be in vain since the plaintiff has no locus to institute the suit against the defendants/applicants. 34.The Cardinal principle is that costs follow events pursuant to section 27 of the Civil Procedure Act 2010 though awarded at the discretion of the court based on the circumstances of each case. The plaintiff was duly swerved with the motion dated 20.5.2026 but failed to oppose the application. Costs are therefore awarded to the Defendants /Applicants. E. Final Orders: 36.In view of the foregoing the Court directs as follows:a.The Plaintiff’s suit is struck out for want of locus standi with costs to the Defendants/Applicants.b.The Applicants granted costs of the application.Right of Appeal 30 days granted. DELIVERED, DATED AND SIGNED IN OPEN COURT AT VOI THIS 16.7.2026J. A. ORWAJUDGE.in the presence of:Ms kipsau for Mr Mwasighe for the Defendants/ApplicantsMr letisiah Court AssistantBut absence of the Plaintiffs/Respondent