https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4245

Stoni Athi Members Association v National Land Commission & 6 others (Environment and Land Petition E002 of 2025) [2026] KEELC 4245 (KLR) (9 July 2026) (Ruling) Neutral citation: [2026] KEELC 4245 (KLR) Republic of Kenya In the Environment and Land Court at Machakos Environment and Land Petition E002 of 2025 JN Kuyioni, J July 9, 2026 Between Stoni Athi Members Association Petitioner and National Land Commission 1st Respondent Charles Mbindyo 2nd Respondent Agricultural Development Corporation 3rd Respondent The Chief Lands Registrar 4th Respondent Director Of Survey 5th Respondent The Honourable Attorney General 6th Respondent African Inland Church 7th Respondent Ruling Introduction 1.Before the Court is the Notice of Motion dated 12th May 2026 by which the Petitioner seeks leave to amend the Petition dated 3rd March 2025 by substituting Boniface Mbai Munyao, Michael Mutiso Munyao and David Makovu Muli, in their capacities as officials of Stony Athi Members Association, as the Petitioners in place of the Association. 2.The Application is brought under Order 8 Rules 3, 4 and 5 and Order 51 Rule 1 of the Civil Procedure Rules, as well as Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and all other enabling provisions. It is supported by the affidavit of David Makovu Muli sworn on 12th May 2026. 3.The 2nd Respondent opposes the Application through a Replying Affidavit and a Notice of Preliminary Objection, both dated 4th June 2026. The Notice of Preliminary Objection challenges the competence of both the Petition and the Application. 4.This Ruling addresses both the Motion and the Preliminary Objection. Background 5.These proceedings were commenced by a Petition dated 3rd March 2025 instituted in the name of Stony Athi Members Association. The Petition challenges the determination of the 1st Respondent, the National Land Commission, dated 17th February 2025 concerning L.R. No. 9917/8. The Petitioner alleges that the 1st Respondent acted without jurisdiction and outside the scope of the judgment delivered in Machakos ELC Judicial Review Case No. 30 of 2020 (formerly Nairobi ELC Judicial Review No. 396 of 2016) in investigating and determining matters relating to the suit property. 6.The Petition consequently seeks declaratory orders that the impugned determination and the consequential recommendations made thereunder are unconstitutional, unlawful, null and void. It also seeks declarations affirming the Petitioner's proprietorship of L.R. No. 9917/8 and challenging the legality of the recommendations made to the 5th and 6th Respondents concerning the revocation of the Petitioner's title. 7.In addition, the Petition seeks orders of certiorari, prohibition and conservatory orders to quash and restrain the implementation of the impugned determination, together with an award of costs. 8.The Petitioner subsequently filed this Application seeking leave to amend the Petition by substituting the Association's officials as Petitioners. The Application is based on the need to regularize the Petitioners description in the proceedings. Response to the Application 9.The 2nd Respondent opposes the Application through a Replying Affidavit sworn by Jane Nyaboke Mbindyo on 4th June 2026. 10.In summary, the 2nd Respondent contends that Stony Athi Members Association, not being a body corporate, lacks legal capacity to institute proceedings in its own name. Consequently, the Petition is said to have been incompetent from the outset and the proposed amendment cannot validate proceedings that were void ab initio. Preliminary Objection 11.Concurrently with the Replying Affidavit, the 2nd Respondent lodged a Notice of Preliminary Objection dated 4th June 2026 challenging the competence of the Petition and the Motion. 12.The objection is based on the contention that proceedings brought in the name of a society registered under the Societies Act, rather than through its officials, are legally incompetent and cannot be cured by amendment. Submissions 13.The Notice of Motion and the Notice of Preliminary Objection were heard together on 8th June 2026, when counsel for each party made oral submissions in support of their respective positions. 14.Mr. Nyachoti, counsel for the Petitioner, submitted that the proposed amendment seeks only to regularise the Petitioner's description by bringing the proceedings in the names of the Association's officials. 15.Counsel argued that the amendment does not introduce a new cause of action or alter the substance of the dispute. He further submitted that the Preliminary Objection does not raise a pure point of law for determination at the outset and urged the Court to allow the Application in the interests of justice. 16.Mr. Kago, counsel for the 2nd Respondent, submitted that the Preliminary Objection raises a pure point of law regarding the Petitioner's legal capacity to institute the proceedings. 17.Counsel argued that the Petition was filed by an entity lacking legal capacity to sue in its own name and was therefore incompetent from the outset. As a result, there were no competent proceedings to amend under Order 8 of the Civil Procedure Rules. Counsel urged the Court to uphold the Preliminary Objection, strike out the Petition, and dismiss the Application for amendment. 18.The remaining Respondents did not file responses to the Application or the Notice of Preliminary Objection, nor did they make submissions. Issues for determination 19.Having considered the Notice of Motion, the Notice of Preliminary Objection, the affidavits, submissions and cited authorities, the following issues arise for determination:a.Whether the Notice of Preliminary Objection raises pure points of law.b.Whether Stony Athi Members Association had legal capacity to institute proceedings in its own name.c.Whether the Petitioner is entitled to leave to amend the Petition. Analysis and Determination 20.The Notice of Preliminary Objection challenges the competence of both the Petition and the Notice of Motion. The main issue is whether the Petitioner, as a society registered under the Societies Act, had the legal capacity to file this case in its own name. The Court must decide this question before looking at the details of the Application for amendment. Whether the Notice of Preliminary Objection raises pure points of law. 21.The law governing preliminary objections is settled. In the locus classicus case of Mukisa Biscuit Manufacturing Co Ltd v West End Distributors Ltd [1969] 1 EA 696, Law JA stated:“A Preliminary Objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 22.The principles in Mukisa Biscuit have since been reaffirmed by the Supreme Court in Ali Joho & another v Suleiman Said Shahbal & 2 others [2014] eKLR, where the Court stated:“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 preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion”. 23.Whether a party possesses legal capacity to institute proceedings is a question going to the competence of the proceedings themselves. Where the issue emerges from the pleadings and turns solely upon the legal status of the litigant, it constitutes a pure point of law capable of determination by way of a preliminary objection. 24.The Court of Appeal considered that question in Finmax Community Based Group & 3 Others v Kericho Technical Institute [2021] eKLR, where it held:“The 1st appellant is an unincorporated association and therefore in law is not a legal personality with the capacity to sue or to be sued. For a long time, courts have held that such bodies could not sue or be sued. However, with the advent of the 2010 Constitution, this position appears to have changed. Article 260 which is the Interpretation section of the Constitution defines “a person” to include; “… a company, association or other body of persons whether incorporated or unincorporated”. As regards institution of court actions, Article 50, dealing with issues of fair hearing gives; “(1) Every person …. 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”. It would seem, from the foregoing, that an association like the 1st appellant is “a person” who may institute proceedings and also be sued. However, the question today is not whether unincorporated entities may commence action or how actions against them may be commenced, but rather, the manner of commencing proceedings. It is equally also settled that they cannot maintain an action or actions brought against them in their names. Proceedings on their behalf or against them can only be through the registered officials, whose particulars, names and capacity must clearly be indicated in the suit.See Grace Mwenda Munjuri vs. Trustee of the Agricultural Society of Kenya [2014] eKLR.In this appeal, the 1st appellant, being an unincorporated organization, had no capacity to be sued in its own name. The respondent could only institute the suit as against named officials. Titles like Chairman, secretary or treasurer cannot be used as those are not legal persons against whom orders may be executed by the successful party in the proceedings. For the reasons we have given, this appeal succeeds. We accordingly allow it by setting aside the judgment and order of the High Court made on 24th March, 2015 and amended on 22nd April, 2015 and substitute it with an order dismissing the respondent’s suit”. 25.A similar approach was adopted in Naka Estate Residence Association v Ense Limited & 33 others [2023] KEELC 594 (KLR) where the Court observed:“A perusal of the Petition and annextures confirms that the Petition is a Society registered under the Society Act. Being a Society under the Societies Act, the issue being raised in the Preliminary Objection is whether the Petitioner can sue in its own name, as it has done. This to me is a noble legal question which goes to the root of the matter herein. It is a point of law which could dispose of the case depending on how it goes. 26.An objection challenging a litigant’s legal capacity to institute proceedings raises a question going to the competence of the proceedings themselves. Where, as here, the status of the Petitioner is apparent from the pleadings and is not disputed, no factual inquiry is required. The question is, therefore one, of law properly falling for determination by way of a preliminary objection. 27.I therefore find that the Notice of Preliminary Objection dated 4th June, 2026 satisfies the test laid down in Mukisa Biscuit. It raises a pure point of law and is properly before the Court. Having found that the Preliminary Objection properly raises a pure point of law, I now turn to the substantive question whether Stony Athi Members Association had legal capacity to institute these proceedings in its own name. Whether Stony Athi Members Association had legal capacity to institute proceedings in its own name. 28.The law recognizes two broad categories of legal persons. The first comprises natural persons, whose legal personality arises from their existence as human beings. The second comprises artificial or juristic persons. Unlike natural persons, artificial persons possess no inherent legal existence. Their legal personality exists only because the law creates it. They acquire the capacity to hold rights, assume obligations, and institute or defend legal proceedings only where statute or the common law expressly or by necessary implication confers that status. 29.The Petitioner describes itself as Stony Athi Members Association, a society registered under the Societies Act (Cap 108) of the Laws of Kenya under Certificate of Registration No. 34711. The issue for determination is whether such registration confers upon the Association a separate legal personality capable of instituting proceedings in its own name. 30.The answer to that issue lies in the provisions of the Societies Act, the statute governing the registration and regulation of societies in Kenya. The Act defines a society in section 2 to include "any club, company, partnership or other association of ten or more persons, whatever its nature or object," subject to the exclusions set out in the Act. Significantly, neither section 2 nor any other provision of the Act provides that registration incorporates a society or confers upon it a legal personality separate from that of its members. 31.Registration and incorporation are distinct juridical concepts. Registration under the Act enables a society to exist and operate within the statutory framework regulating societies. Incorporation, by contrast, creates a separate legal person capable of owning property, assuming liabilities, and suing or being sued in its own name. Registration alone does not confer such legal personality unless the statute expressly or by necessary implication so provides. 32.Section 41 of the Societies Act is also instructive. It permits a society charged with an offense under the Act to appear through a duly appointed representative. The provision contemplates that the society participates in legal proceedings through a representative acting on its behalf. 33.The statutory framework therefore provides no basis for concluding that registration under the Societies Act confers upon a society a legal personality separate from that of its members. Against the above statutory background, I consider the relevant authorities. 34.The courts have consistently held that a society registered under the Societies Act lacks separate legal personality and cannot institute proceedings in its own name. In County Government of Narok v Ntutu & 2 others; Maasai Mara Disables Help Group (Applicant) (Civil Appeal (Application) E052 of 2025) [2026] KECA 5 (KLR) the Court observed:“ 29.We think we have expressed our views in detail and laid down sufficient reasons to arrive at the conclusion that the present application has no legal foundation. Before the trial court was a civil suit relating to a land ownership dispute. We are not persuaded that the applicant has demonstrated that it possesses the legal capacity for this Court to admit it to participate in this appeal. The upshot of the foregoing is that, Maasai Mara Disables Community Self Help Group has no capacity to institute action in its own name. Accordingly, we have no option but to disallow the applicant’s application for joinder having been filed by an entity which is unknown in law and which has no capacity to institute action in its own name.” [Emphasis added] 35.The Court of Appeal reached the same conclusion in Finmax Community Based Group & 3 Others v Kericho Technical Institute (supra). In doing so, it considered the effect of Articles 50 and 260 of the Constitution, which recognize an association, whether incorporated or unincorporated, as a "person". The Court held that the issue is not whether such an association may participate in litigation, but whether proceedings have been instituted in the manner recognized by law. It concluded that proceedings by or against an unincorporated association cannot be maintained in its own name, but must be brought through its registered officials. 36.The Environment and Land Court reached the same conclusion in Environmental Institute of Kenya v National Environment Management Authority (NEMA) & 2 others (Environment and Land Judicial Review Miscellaneous Application E007 of 2025) [2026] KEELC 3108 (KLR). The Court stated as follows in paragraph 38:“In this case, the Applicant lacked legal capacity to institute the proceedings in its own name and the proceedings were therefore null and void ab initio. Being a nullity, they cannot be salvaged through amendment or substitution, for in law there can be no amendment of proceedings that were incompetent from the onset.” 37.In Mwanyagetinge Monontwa Welfare Association v Cabinet Secretary Ministry of Interior & Coordination of National Government & 2 Others [2024] KEHC 8337 (KLR), the Court held as follows:“The petitioner sued its own name instead of the names of the officials. The petitioner got it wrong when its chair said that it is duly registered, however it’s registration is not in issue what questioned is the fact that it has sued in its own name instead of the offcials. I agree with the 1st and 2nd respondents that the petitioner being a society has no capacity to sue in its own name as it is not a legal person. The petition is thus struck out.” 38.The same principle was restated in Republic v Registrar of Societies & another; Kenya International Freight & Warehousing Association (Nairobi Branch) (Ex parte) (Judicial Review Application E032 of 2024) [2025] KEHC 4789 (KLR) where the Court likewise held that unincorporated bodies lack legal capacity to institute proceedings in their own names. 39.The foregoing authorities speak with one voice. A society registered under the Societies Act is not, by reason only of its registration, endowed with a legal personality separate from that of its members. It follows that proceedings cannot be instituted in the name of the society itself. Proceedings for or against the society can only be brought through its duly authorized officials. 40.Applying the above principles to the present case, the Petitioner is described in the Petition as Stony Athi Members Association, a society registered under the Societies Act. The proceedings were instituted in the name of the Association itself and not through its officials. Since the Association lacks separate legal personality, it did not possess the legal capacity to institute the Petition in its own name. 41.Having found that the Petitioner lacked legal capacity to institute these proceedings in its own name, I now turn to consider whether that defect is capable of cure by amendment under Order 8 of the Civil Procedure Rules. Whether the Petitioner is entitled to leave to amend the Petition. 42.Having found that the Petitioner lacked legal capacity to institute these proceedings in its own name, the remaining question is whether that defect is capable of cure by amendment under Order 8 of the Civil Procedure Rules. 43.The principles governing amendment of pleadings are well settled. The power conferred upon the Court under Order 8 of the Civil Procedure Rules is broad and is ordinarily exercised liberally so as to facilitate the determination of the real questions in controversy, provided that no prejudice incapable of compensation by costs is occasioned to the opposite party. 44.The power to permit amendment presupposes the existence of competent proceedings before the Court. Its purpose is to facilitate the determination of the real questions in controversy by correcting or refining pleadings properly before the Court. It does not extend to creating competent proceedings in which none existed at the commencement of the action. 45.This principle was affirmed by the Court of Appeal in Kingangi v John & 2 Others [2023] KECA 315 (KLR), where, approving the decision in Pratap Chand Mehta v Chrisna Devi Mehta AIR 1988 Delhi 267, the Court held that amendment cannot be employed to create validity where none existed at the commencement of the proceedings. 46.The same approach was adopted by the Environment and Land Court in Environmental Institute of Kenya v National Environment Management Authority (NEMA) & 2 others (supra), where the Court held that proceedings instituted by an entity lacking legal capacity cannot be subsequently ratified by amendment or substitution. 47.I respectfully agree with the ratio in the foregoing decisions. In any case, the decision in Kingangi v John & 2 Others [2023] KECA 315 (KLR) is binding upon this court. The power to permit amendments is intended to perfect competent proceedings. An amendment may correct a misdescription, rectify an omission, or make clear the issues in controversy. It cannot retrospectively confer legal capacity upon a party that lacked it when the proceedings were instituted. 48.The Petitioner argues that the proposed amendment merely corrects the description of the Petitioner. The Petition was instituted in the name of Stony Athi Members Association, which, as already found, lacked legal capacity to sue in its own name. The proposed amendment therefore seeks not merely to correct the description of an existing party, but to introduce, in place of the original Petitioner, persons possessing legal capacity who were not parties to the proceedings when they were instituted. I am therefore unable to agree with the submissions by the Petitioner. 49.The amendment sought to be introduced therefore goes beyond correcting a misdescription or rectifying an omission. Its effect would be to introduce, for the first time, the persons through whom the proceedings ought to have been commenced. That is not the purpose for which the jurisdiction to amend pleadings is conferred. 50.Having found that the Petition was incompetent from its inception, it follows that there were no competent proceedings upon which the Court's jurisdiction under Order 8 could operate. The same reasoning applies to Order 1 Rule 10. The power to add or substitute parties presupposes the existence of competent proceedings before the Court and cannot be invoked to create competence where there was none. 51.Although the parties did not place reliance upon Article 159(2)(d) of the Constitution, the Court considers it necessary to address the point because the provision is frequently invoked where defects of this nature arise. Article 159(2)(d) requires courts to administer justice without undue regard to procedural technicalities. It does not, however, empower a court to confer legal personality where none exists or to validate proceedings that were incompetent from their inception. 52.I am equally mindful of Articles 22 and 258 of the Constitution, which liberalized the rules governing standing before the courts. Those provisions concern who may approach the court to vindicate constitutional rights. They do not dispense with the requirement that proceedings be instituted through a person recognized by law. The issue before the Court is therefore not one of standing, but of legal capacity. 53.For the foregoing reasons, I find that the defect in the present Petition is incapable of cure by amendment under Order 8 of the Civil Procedure Rules. It follows that the Petitioner is not entitled to the leave sought in the Notice of Motion dated 12th May 2026. The Motion is therefore devoid of merit and is dismissed. Disposition 54.In light of the foregoing findings, the Preliminary Objection dated 4th June, 2026 is merited. The Petition, having been instituted by an entity lacking legal capacity to sue in its own name, is incompetent from its inception and must be struck out. It necessarily follows that the Notice of Motion dated 12th May 2026, which sought leave to amend the Petition, cannot succeed. 55.On the question of costs, section 27(1) of the Civil Procedure Act vests the Court with discretion as to costs while preserving the general principle that costs follow the event unless, for good reason, the Court orders otherwise. In Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), the Supreme Court reaffirmed that although the award of costs is discretionary, where a court departs from the general rule that costs follow the event, the reasons for doing so must be discernible from the record 56.I find no basis for departing from the general principle that costs follow the event. In the exercise of my discretion under section 27(1) of the Civil Procedure Act, I award the costs of these proceedings to the 2nd Respondent. Orders 57.Consequently, the Court makes the following orders:a.The Notice of Preliminary Objection dated 4th June 2026 is hereby upheld.b.The Petition dated 3rd March 2025 is hereby struck out.c.Consequently, the Notice of Motion dated 12th May 2026 is dismissed.d.The 2nd Respondent shall have the costs of these proceedings.It is so ordered. DELIVERED AND DATED AT MACHAKOS THIS 9TH DAY OF JULY, 2026.HON. J. N. KUYIONIJUDGE09.07.2026Ruling delivered virtually through Microsoft Teams Video Conferencing PlatformIn the presence of;Catherine Court Assistant.Mr. Osiemo holding brief for Mr. Nyachoti together with Mr. Muema and SC Lakicha for Petitoners.Mr. Siboe for the 8th Respondent.Mr. Kago for the 2nd Respondent.No appearance for the other parties.