https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3546

Redeemed Gospel Church v Omae (Land Case Appeal E022 of 2024) [2026] KEELC 3546 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEELC 3546 (KLR) Republic of Kenya In the Environment and Land Court at Kisii Land Case Appeal E022 of 2024 AA Omollo, J June 11, 2026 Between Redeemed Gospel Church Appellant and Truphena Nyamokami Omae Respondent Judgment 1.Vide a memo of appeal dated 4th June 2024, the appellant raised the following grounds: -I.The learned Magistrates erred in law and fact by holding that the respondent’s Preliminary objection was merited yet it was not based on a pure point of law but on facts which were to be ascertained and may dispose a suit.II.The learned magistrate erred in law and fact by failing to consider and address the fundamental issue raised by the appellant with regard to capacity of the church to be sued as a legal entity pursuant to the provisions of the societies Act, cap. 108 Laws of KenyaIII.The learned Magistrate erred in law and fact by condemning the appellant to pay throwaway costs of Kshs 10,000/- in addition to striking out the appellant’s application and defence without any lawful justification.IV.The learned Magistrate erred in law and fact by finding that the applicant did not have capacity to represent the appellant yet failed to appreciate that the church, a society, in its capacity was not a legal person but could only sue and be sued through its designated officials as provided int he Society’s constitution.V.The learned magistrate erred in law and fact by upholding the respondent’s preliminary objection but the same did not dispose of the suit but the court gave directions in favour of the respondent with a view of sustaining fatally and incurable defective suit. 2.He prays to be granted orders: -a.That the appeal be allowed with costsb.That the ruling dated 22nd day of May, 2024 and all orders emanating there from be vacated/set aside.c.That the suit, that is, Environment and Land Case number E029 of 2023 from which this appeal emanates be dismissed in its entirety with costs to the appellant.d.Any further relief the Honourable court may deem fit to grant. 3.In its statement of defence dated 14/11/2023, the 1st Respondent pleaded at paragraph 4 that it cannot be sued in the manner it has been sued. It put the Appellant on notice that it would raise a preliminary objection. The 1st Respondent also contested the capacity of the Appellant to institute the suit. 4.Subsequently, the 1st Respondent took steps to argue the preliminary objection by filing the notice of motion application dated 16/11/2023 where it prayed that the court dismiss the suit for being irregular ab-initio. 5.On 8th January 2024, the Appellant filed what she called preliminary objection to the application and the statement of defence. She pleaded thus: -I.That Eric Mosiria Ochieng is a total stranger to the proceedings before this honourable court.II.That Eric Mosiria Ochieng lacks the legal locus standi to appear before this honourable courtIII.That Eric Mosiria Ochieng lacks a legal authority to appear as the legal representative of the defendant. 6.The application and the preliminary objection was argued by way of written submission filed and are on record. The learned magistrate having considered the issues raised before him rendered his decision on 22/5/2024. The Hon. Magistrate held that the preliminary objection by the appellant was unmeried on account that the Authority to act issued to Erick Mosiria Ochieng was filed after the filing of the memo of appearance and statement of defence. 7.This resulted in the striking out of the application dated 16/11/2023 and statement of defence dated 14/11/2023 with costs to the Appellant. He also granted the 1st respondent leave to regularise the position within 14 days of the order. Analysis and determination: 8.I have read the submissions filed by the appellant and the Respondent. I will adopt the grounds raised in the appeal as the question for determination thereof. 9.The Applicant stated that the 1st Respondent’s preliminary objection was not a pure point of law and required to be ascertained by facts. The learned magistrate stated in his ruling that the Authority to Act” was filed n 22/1/2024 after the statement of defence and the application. The dates were picked from the record before the trial magistrate. It is my considered opinion that since the 1st respondent's preliminary objection was anchored on when the authority to act was filed, it is not a matter that required evidence to be produced. 10.Was it a point of law? The question of capacity to swear or sign pleadings is a question of law just like the Appellant had in the application which was struck out hand pointed that they were wrongly sued. The fact that the authority was filed after the Appellant’s pleadings means that, as at the date of filing, the Appellant’s representative lacked capacity to do so. I find no fault on the magistrate upholding this limb of the preliminary objection. 11.The 2nd issue taken up by the Appellant is the trial court’s failure to address the fact of the manner in which the Appellant was sued. The issue of capacity was pleaded both in the statement of defence and application signed by Erick Mosiria Ochieng, who the trial court found had no capacity to sign the documents. 12.The question is whether the point of law having been raised by an unauthorised person ceased to be one. The fact of striking out pleadings signed by the said Erick Mosiria Ochieng did not remove the Appellant’s name as one of the parties sued. Hence the court ought to have addressed the issue of capacity wholesomely. 13.Section 2 of the societies Act (the interpretation section) defines a 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—(a)a company or foreign company registered under the Companies Act (Cap. 486);(b)any corporation incorporated by or under any other written law; 14.Section 41 of the Societies Act, also stipulates that a society can only sue, be sued, or appear in a suit through an appointed representative or principal office-bearers acting on its behalf. Registration under the Act is purely for regulatory purposes and does not confer corporate or separate legal personality like registration under the Companies Act 15.In the case of Mitikenda Residents Association v. Njuguna & 3 Others (ELC 624 of 2017), it was held that a society registered under the Societies Act, Cap 108, lacks legal standing to sue in its own name and must act through its registered officials. 16.Similarly, in Free Pentecostal Fellowship in Kenya v Kenya Commercial Bank Nairobi HCCC No. 4116 of 1992 Justice Bosire (as he then was) stated thus:“The position at common law is that a suit by or against unincorporated bodies of persons must be brought in the names of, or against all the members of the body or bodies. Where there are numerous members the suit may be instituted by or against one or more such persons in a representative capacity pursuant to the provisions of Order 1 rule 8 Civil Procedure Rules.” 17.It is trite law that a society must be sued through the names of its officials, so even the 1st Respondent’s suit is defective for want of form. The 1st Respondent’s argument that the title deed bears the Appellant’s name as sued, not the names of its officials, carries no weight, since an irregularity in the title cannot be used to justify non-compliance with the law. 18.The last question is whether the trial magistrate erred in awarding thrown away costs of Kshs 10,000 against the Appellant. The award of costs is an exercise of discretion which this court can interfere with only if it was not exercised judiciously. 19.As at the time the statement of defence and the application were ordered struck out, the suit was still in its preliminary stage. The order read that “ the defence and application are ordered struck out with costs. The costs of 10,000 were thrown away and paid to the plaintiffs in that case. 20.My understanding of order on costs is that the trial court proceeded to assess the costs of striking out the defence/application at Kshs 10,000 section 27 of the civil procedure Act provides that cost follow the events. In this instance, the learned magistrate had found in favour of the 1st respondents. Therefore his exercise of discretion to award the costs was within the law. 21.Do the costs awarded by trial court stand? I have found herein above that the Appellant’s representative, who signed the pleadings on its behalf, did not include the letter of authority to act; hence, the pleadings were defective. I have also found that the law requires the Appellant to be sued in the name of its official. Hence the need to amend the manner in which the 1st Respondent has sued it. 22.That is to say that both parties are successful and the proper order on costs to make is that each party bear their respective costs of the preliminary objection dated 8/1/2024 and the application dated 16/11/2023. 23.What orders commend themselves in the circumstances:I.The appeal is allowed.II.The ruling of the trial magistrate is varied to read thata.The 1st Respondent’s preliminary objection dated 8/1/2024 remains upheld.b.The Appellant’s preliminary objection on lack of capacity to be sued in its name is upheld.c.The suit against the appellant in its own name is ordered struck out with leave to the 1st Respondent to file a suit against the Appellant through the names of its official/trustees.d.Each party to bear the costs of MCELC E029/2023e.The Appellant is awarded costs of the appeal. DATED, SIGNED AND DELIVERED AT KISII THIS 11TH DAY OF JUNE, 2026.A. OMOLLOJUDGE