[2025] KELAT 167 (KLR)

Sergoit Polo Club v Tambach/Moiben TTC & 4 others (Tribunal Case E060 of 2024) [2025] KELAT 167 (KLR) (5 May 2025) (Ruling)

Neutral citation: [2025] KELAT 167 (KLR)

Republic of Kenya

In the Land Acquisition Tribunal

Tribunal Case E060 of 2024

NM Orina, Chair & G Supeyo, Member

May 5, 2025

Between

Sergoit Polo Club

Plaintiff

and

Tambach/Moiben TTC

1st Defendant

Tachasis Girls Secondary School

2nd Defendant

National Land Commission

3rd Defendant

Ministry of Education

4th Defendant

Attorney General

5th Defendant

Ruling

Background. 1. The Plaintiff approached this Tribunal vide a Plaint dated 19th December 2024 being aggrieved by the alleged compulsory acquisition process undertaken in relation to Land Parcel Nos. LR 3769/1 and LR 5734/1 (“the suit properties”), registered in the name of the Plaintiff in the year 2000.

2. The 4th and 5th Defendants raised a Preliminary Objection by a Notice thereof dated 15th March 2025, seeking that the entire suit be struck out on the grounds that the Plaintiff has no legal capacity to institute the suit and further, that the suit is time-barred.

3. The 4th and 5th Defendants filed written submissions dated 20th March 2025 in support of their Preliminary Objection. The Plaintiff has on its own part filed written submissions dated 5th April 2025 opposing the Preliminary Objection. This Tribunal has considered the totality of the arguments by counsel and hereby renders its determination on the 4th and 5th Defendants’ Preliminary Objection.

B. Analysis and Determination. 4. The two main issues for determination as particularized in the Notice of Preliminary Objection and submissions filed, both in support of and opposition to the same, are as follows:i.Whether the Plaintiff has locus to institute the suit; andii.Whether the Plaint herein is time-barred.

5. The first issue for determination relates to whether the Plaintiff, being a society registered under the Societies Act, Cap. 108 Laws of Kenya, has the capacity to sue or be sued in its own name.

6. Under the Societies Act, a society is not a legal person with capacity to sue or be sued. A society can only be sued through its registered officials as laid down and affirmed in the case of Islamia Madrassa Society v Zafar Niaz & 8 others [2021] eKLR and in Trustees Kenya Redeemed Church & another v Samuel M’Obuya [2011] eKLR.

7. The import and effect of the Societies Act under which the Plaintiff is established is that the Plaintiff does not have the legal capacity of suing or being sued in its own name. The Court in John Otteyo Amwayi & 2 others v Rev. George Abura & 2 others (Civil Appeal No 6339 of 1990) interpreted the provisions of the Societies Act as follows:The Societies Act does not contain provisions with regard to the presentation and prosecution of suits by or against the unincorporated Societies. It would appear to me that the legislature did not intend that suits be brought by or against those Societies in their own names... 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... It is not a body corporate which would then mean it would be sued as a legal personality. That being so it lacks the capacity to be sued in its own name. A society can only sue or be sued through its officials. That is the law.

8. Further to the above, the Court in Makete & 6 others (Suing for and on behalf of Elgon East Friends Church (Quaker Yearly Meeting) v Lusweti & 5 others (Environment & Land Case 10 of 2023) [2023] KEELC 17005 (KLR) (25 April 2023) (Ruling) elaborated as follows:Regarding a registered society, I refer to the Halsbury’s Laws of England, 3rd Edition Volume 18 paragraph 239 which states:“The trustees of a registered society or branch or officers authorized by its rules may bring or defend actions of legal proceedings with respect to any property, right, or claim of the society or branch and may sue and be sued in their proper names without other description other than the title of their office.”

9. On account of the above authorities, we find that the Plaintiff is not a body corporate and therefore lacks legal personality to sue or be sued in its own name. It therefore lacks the locus standi to institute this suit in its own name.

10. The effect of this unfortuitous omission on the part of the Plaintiff requires no belabouring. In a nutshell, in the absence of proper standing, a party has no basis to claim anything before a Court or Tribunal. For that matter and to that extent, the suit by the Plaintiff, however meritorious it may be, must be struck out.

11. Be that as it may, for good measure, we will consider the second issue for determination.

12. On the question whether the suit is time barred, the 4th and 5th Defendants bring to the attention of this Tribunal that the Plaintiff admits that it enjoyed peaceful and quiet ownership of the suit property until sometime in 2000. That at the time of filing the instant suit, some 24 years have elapsed, in which period the Plaintiff has never bothered to challenge the acquisition for which it has moved this Tribunal, nor has it provided any explanation to warrant the inordinate delay in making its claim.

13. The Plaintiff, on its part contends that the suit is not time barred given the provisions of section 26 of the Limitations of Actions Act, Cap 22 Laws of Kenya that the right of action was concealed by the Defendants’ fraud. However, the Plaintiff does not advance that argument further and only contends that the same is a matter to be ascertained at trial.

14. Section 7 of the Limitations of Actions Act provides as follows:An action may not be brought by any person to recover land after the end of twelve years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims to that person.

15. On the other part, section 26 of the Limitations of Actions Act provide as follows:Where, in the case of an action for which a period of limitation is prescribed either—a.the action is based upon the fraud of the defendant or his agent, or of any person through whom he claims or his agent; orb.the right of action is concealed by the fraud of any such person as aforesaid; or(c)the action is for relief from the consequences of a mistake, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake or could with reasonable diligence have discovered it.

16. It is evident that the provisions of section 26 do not stop the clock from running, they become relevant when the clock starts ticking towards the end of the limitation period. Where a litigant seeks to rely on section 26, it is upon that litigant to prove that from the time such a litigant discovered the fraud to the point it seeks judicial intervention, the period of limitation has not elapsed. However, this is an evidential matter that cannot be resolved at this preliminary stage.

17. On another note, it is evident from the suit that the Plaintiff seeks the enforcement of fundamental rights, more specifically, rights under Articles 40 and 47(2) of the Constitution of Kenya 2010 as read together with the provisions of Part VIII of the Land Act, 2012. A suit alleging violation of rights under the Constitution is not subject to the provisions of the Limitation of Actions Act. As observed in the case of Kiluwa Limited & another v Commission of Lands & 3 others [2015] eKLR:There is no statutory period prescribed for commencement of the petitions either under Article 22 or 258 of the Constitution. The grant of these reliefs or remedies is consequently not subject to any statute or period of limitation either under the Limitation of Actions Act (Cap 22 laws of Kenya) or the Law Reform Act… I therefore reject argument by Counsel for the 3rd and 4th respondents subjecting the reliefs in judicial review granted in a constitutional petition to any period of limitation.

18. In the circumstances, therefore, we are not satisfied that this suit is barred by didn’t of the provisions of the Limitation of Actions Act. However, since we have found that the same is incompetent by virtue of lack of a legal standing on the part of the Plaintiff to institute the suit, the same is hereby struck out with no orders as to costs.

DATEDAND DELIVEREDVIRTUALLY AT NAIROBI THIS 5THDAY OF MAY 2025DR. NABIL M. ORINA, PHDCHAIRPERSONGEORGE SUPEYOMEMBER