https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3108

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) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3108 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Judicial Review Miscellaneous Application E007 of 2025 OA Angote, J May 21, 2026 Between The Environmental Institute of Kenya Applicant and The National Environment Management Authority (NEMA) 1st Respondent The Cabinet Secretary, Ministry of Environment 2nd Respondent The Attorney General 3rd Respondent Ruling 1.Vide a Chamber Summons dated 9th September, 2025 brought pursuant to the provisions of Sections 1А, 1В, 3А of the Civil Procedure Act and Order 8 Rules 3 and 5 of the Civil Procedure Rules, the Applicant seeks the following reliefs:i.Spentii.Leave be granted to the ex-parte Applicant to amend the substantive application herein for the sole purpose of correcting and/or substituting the names of the parties.iii.The annexed Amended application be deemed as duly filed upon payment of the requisite court fees.iv.Costs of this Application be in the cause. 2.The Motion is supported by the affidavit of Alex Mugambi, a licensed Environmental Impact Assessment Lead Expert duly registered in Kenya by the 2nd Respondent, and the current Chairman of the Applicant, the Environment Institute of Kenya (EIK). 3.He explained that the Applicant is a professional body established in 2014 to represent licensed environmental practitioners, auditors, and experts across Kenya and that its mandate includes promoting professionalism, safeguarding the welfare of environmental practitioners, ensuring professional compliance with environmental laws, and advocating for sustainable environmental governance in line with the Constitution of Kenya, 2010 and EMCА. 4.According to the deponent, the substantive Notice of Motion herein was initially filed in the name of the Environment Institute of Kenya. However, they now seek leave to amend the pleadings so that the suit may properly proceed in the names of the officials of the said institute. 5.It was contended that the intended amendment is necessary in order to correctly reflect the proper parties to the suit and to facilitate the just and effectual determination of the matter. The Applicant further maintained that the proposed amendment will not occasion any prejudice to the Respondents. 6.In response, the 1st Respondent filed grounds of opposition dated 9th October, 2025 premised on the facts that:i.The Ex-parte Applicant herein, lacks the locus standi to institute these proceedings in its own name contrary to Section 41(1) of the Societies Act, Chapter 108 Laws of Kenya, (the “Societies Act”) which stipulates that a Society can only institute a suit or proceeding through its authorized officials and not in the name of the society.ii.That the application dated 9th September 2025 is one for amendment but is too pedestrian for want of disclosure of the current and legally registered officials of the ex-parte applicant. The court shouldn’t just allow.iii.That the fatality of the step taken by the ex-parte applicant is so fundamental that it cannot be cured by an attempt at amending the Notice of Motion only (as the exparte applicants seek). It is noted that leave to institute judicial review granted on the 1st September 2025 was not given to the officials of the ex-parte applicant.iv.These proceedings are for striking out and the ex-parte applicants may seek fresh leave via their properly registered and disclosed office bearers. 7.None of the other parties participated in the Motion. 8.The Applicant filed submissions on 29th October 2025 contending that although judicial review proceedings are sui generis and primarily governed by Order 53 of the Civil Procedure Rules, the court retains discretion under Order 53 Rule 4(2) to permit amendments where necessary to correct the description of parties, clarify the reliefs sought, or align the pleadings with the leave granted by the court. 9.According to the Applicant, the purpose of that provision is to ensure that disputes are determined on their substantive merits rather than defeated by procedural technicalities. In support of that position, reliance was placed on Republic vs Public Procurement Administrative Review Board & 2 Others ex parte Pelt Security Services Limited [2018] eKLR. Further reliance was placed on Republic vs Kenya School of Law & Another Ex parte Juliet Wanjiru Njoroge & 5 Others [2015] eKLR. 10.Counsel therefore contended that the present application, which seeks to amend the description of the Ex-parte Applicant and substitute its authorized officials in compliance with Section 41(1) of the Societies Act, is properly grounded both in Order 53 Rule 4(2) and in established jurisprudence. 11.It was submitted that the proposed amendment is narrow, procedural, and intended solely to regularize the identity of the Ex-parte Applicant by correctly reflecting its authorized office bearers and that it does not alter the cause of action, introduce new claims, vary the reliefs sought, or change the substantive issues falling for determination. 12.In support of this position, reliance was placed on Central Kenya Ltd vs Trust Bank Ltd & 4 Others [2000] 2 EA 365, where the Court of Appeal held that amendments should be freely allowed where they assist the court in determining the real question in controversy and help avoid multiplicity of proceedings. Also cited was Eastern Bakery vs Castelino [1958] EA 461. 13.It was urged that the Respondent will suffer no prejudice if the amendment is allowed, since it merely regularizes the proceedings and ensures compliance with procedural requirements. 14.On the issue of locus standi, the Applicant submitted that the Respondent’s contention that the Ex-parte Applicant lacks capacity under Section 41(1) of the Societies Act in fact underscores the necessity of the amendment sought. Refusing the amendment, it was urged, will elevate procedural technicalities above substantive justice and perpetuate an error capable of being corrected without prejudice to the Respondent. 15.The Applicant further submitted that Kenyan courts have consistently held that procedural defects in judicial review proceedings are curable through amendment. Reliance was placed on Republic vs County Government of Kiambu Ex parte Robert Gakuru & Another [2016] eKLR, and Republic vs Kenya National Examinations Council Ex parte Gathenji & Others [1997] eKLR. 16.Counsel urged, relying on Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution that the court is constitutionally and statutorily obligated to administer justice without undue regard to procedural technicalities. Also cited was Nicholas Kiptoo Arap Korir Salat vs IEBC & 7 Others [2014] eKLR. 17.The 1st Respondent filed submissions on 11th February 2026. Counsel submitted that that the Ex-parte Applicant, the Environmental Institute of Kenya, had described itself in the pleadings as a professional body representing licensed environmental experts in Kenya and had annexed a Certificate of Registration issued under Section 10 of the Societies Act. It is therefore a duly registered society governed by the provisions of the Societies Act. 18.Counsel submitted that Section 41 of the Societies Act is clear that a society may only institute proceedings through its duly authorized officials and not in its own name. In support of that proposition, reliance was placed on Supreme Council of Kenya Muslims (SUPKEM) & another vs Registrar of Societies; Omar & 2 others (Interested Parties) (Judicial Review E104 of 2023) [2024] KEHC 1320 (KLR), where the court held that societies registered under the Societies Act, as well as other unincorporated associations, are not legal persons capable of suing or being sued in their own names. 19.It was submitted that the Ex-parte Applicant, being a registered society under the Societies Act, lacked the legal capacity to institute judicial review proceedings in its own name and that the substantive Motion having admittedly been filed in the name of the Environment Institute of Kenya is defective and bad in law, and that Article 159 of the Constitution cannot not cure such a defect. 20.Reliance was placed on Hussein v Gedi; Adan (Interested Party) (Environment & Land Case E009 of 2024) [2025] KEELC 931 (KLR) and Julian Adoyo Ongunga & Another v Francis Kiberenge Bondeva [2016] KEC 4186 (KLR), where the courts held that locus standi goes to the jurisdiction of the court and that proceedings instituted by a party lacking legal capacity are null and void ab initio. 21.On the proposed amendment, the 1st Respondent submitted that the Applicant, having realized it lacked capacity to institute the proceedings, is now attempting to cure a fundamental defect by substituting the society with its officials. It was further submitted that since leave to commence judicial review proceedings had not been granted to the officials now sought to be introduced, the intended parties ought to seek fresh leave before instituting such proceedings. 22.It was urged that the proposed amendment is itself defective because the application did not clearly identify the names and capacities of the officials sought to be substituted, or exhibit any written authority authorizing them to represent the society as required under Section 41(2) of the Societies Act leaving the Respondents in doubt as to the authority and capacity of the proposed representatives. Analysis and Determination 23.Having analyzed the pleadings and submissions, the sole issue for determination is whether the Applicant’s plea for amendment is merited? The general power of the court to amend pleadings is drawn from Section 100 of the Civil Procedure Act, which provides as follows:“The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on the proceeding.” 24.Further guidance is found in Order 8 Rule 3(1), (2) and (5) of the Civil Procedure Rules,2010 which provides:“(3)(1)Subject to Order 1, rules 9 and 10, Order 24, rules 3,4,5 and 6 and the following provisions of this rule, the court may at any stage of the proceedings, on such terms as to costs or otherwise as may be just and in such manner as it may direct, allow any party to amend his pleadings.(3)(2)Where an application to the court for leave to make an amendment such as is mentioned in sub rule (3), (4) or (5) is made after any relevant period of limitation current at the date of filing of the suit has expired, the court may nevertheless grant such leave in the circumstances mentioned in any such sub rule if it thinks just so to do.“3(5)An amendment may be allowed under sub rule (2) notwithstanding that its effect will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the suit by the party applying for leave to make the amendment.” 25.Whereas Order 8 Rule 5(1) provides:“For the purpose of determining the real question in controversy between the parties, or correcting any defect or error in any proceedings, the court may either on its own motion or on the application of any party order any document to be amended in such manner as it directs and, on such terms, as to costs or otherwise as are just.” 26.Order 53 rule 4(2) of the Civil Procedure Rules also provides for amendment albeit in the following terms:“The High Court may on the hearing of the motion allow the said statement to be amended, and may allow further affidavits to be used if they deal with new matter arising out of the affidavits of any other party to the application, and where the applicant intends to ask to be allowed to amend his statement or use further affidavits, he shall give notice of his intention and of any proposed amendment of his statement, and shall supply on demand copies of any such further affidavits.” 27.The principles upon which a court acts in an application to amend pleadings were set out by the Court of Appeal in Central Kenya Limited vs Trust Bank limited (2000)eKLR which referred to commentaries on the Indian Civil Procedure Code by Chittaley and Rao where the learned authors stated as follows with regards to the rule to amendment of pleadings:“The settled rule with regard to amendment of pleadings has been concisely stated in Vol.2, 6th Ed. at P.2245, of the AIR Commentaries on the Indian Civil Procedure Code by Chittaley and Rao, in which the learned authors state: A party is allowed to make such amendments as may be necessary for determining the real question in controversy or to avoid a multiplicity of suits, provided there has been no undue delay, that no new or inconsistent cause of action is introduced, that no vested interest or accrued legal right is affected and that the amendment can be allowed without injustice to the other side.” 28.More recently, the Court of Appeal in Elijah Kipngeno Arap Bii vs Kenya Commercial Bank Limited [2013] KECA 345 (KLR) affirmed that the law applicable to amendment of pleadings is as stated in Bullen and Leake & Jacob's Precedents of Pleadings – 12th Edition and captured in the Court of Appeal decision in Joseph Ochieng & 2 others vs First National Bank of Chicago, Civil Appeal No. 149 of 1991 thus:“The ratio that emerges out of what was quoted from the said book is that powers of the court to allow amendment is to determine the true, substantive merits of the case; amendments should be timeously applied for; power to so amend can be exercised by the court at any stage of the proceedings (including appeal stages); that as a general rule, however late, the amendment is sought to be made it should be allowed if made in good faith provided costs can compensate the other side; that the proposed amendment must not be immaterial or useless or merely technical; that if the proposed amendments introduce a new case or new ground of defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made the subject of a fresh action; that the plaintiff will not be allowed to reframe his case or his claim if by an amendment of the plaint the defendant would be deprived of his right to rely on Limitation Acts.” 29.The Applicant asks this court to grant leave to amend the substantive Notice of Motion for the sole purpose of correcting and/or substituting the description of the Ex-parte Applicant so that the proceedings may properly continue in the names of its authorized officials rather than in the name of the Environment Institute of Kenya. 30.According to the Applicant, the proposed amendment is procedural in nature, does not introduce a new cause of action, alter the reliefs sought, or occasion prejudice to the Respondents, but merely seeks to regularize the proceedings and align them with the requirements of Section 41 of the Societies Act. 31.In response, the 1st Respondent contends that the proceedings are incurably defective because societies registered under the Societies Act lack legal capacity to sue or be sued in their own names and may only litigate through duly authorized officials. 32.It is undisputed that the Applicant is a society duly registered under the Societies Act, as evinced by the Certificate of Registration annexed to the pleadings. It is equally not contested that these proceedings were instituted in the name of the Environment Institute of Kenya. 33.Courts have indeed had occasion to pronounce themselves on the legal status of societies registered under the Societies Act. In Trustees Kenya Redeemed Church & Another vs Samuel M’Obiya & 5 Others [2011] eKLR and African Orthodox Church of Kenya vs Rev. Charles Omuroka & Another [2014] eKLR the court reaffirmed that societies are not legal persons capable of instituting proceedings in their own names. 34.The same reasoning was echoed in Republic vs Registrar of Societies Ex Parte Narok Muslim Welfare Association [2017] eKLR, where the court held that societies may only sue or be sued through their duly authorized officials. 35.The court has anxiously considered this issue. There is no doubt that the proceedings, as originally instituted in the name of the Environment Institute of Kenya, were defective for want of legal capacity. The question before the court is not whether the defect existed, but whether the same is capable of being cured through amendment in the particular circumstances of this case. 36.In the court’s view, the issue before it is not one of addition of parties necessary for the effectual determination of the dispute, as the Applicant would have this court believe. Rather, the issue goes to legal capacity. The law is settled that proceedings by societies registered under the Societies Act must be instituted through duly authorized officials and not in the name of the society itself. 37.While this court remains alive to the constitutional imperative under Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act requiring courts to administer justice without undue regard to procedural technicalities, the defect before the court cannot be regarded as a mere procedural lapse. Capacity is not a technicality. It goes to the competence of the proceedings themselves and, consequently, to the jurisdiction of the court. 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. 39.The court therefore finds that the defect herein is substantive, and incurable through amendment. The proper recourse available to the officials, if they be so advised, is to institute fresh proceedings in accordance with the law. In the end, the court finds that the Notice of Motion dated 9th September 2025 is unmerited. 40.Further, having found that these proceedings were instituted by an entity lacking locus standi and legal capacity to sue in its own name, the court equally finds that the entire proceedings are incompetent and incurably defective. The suit is therefore hereby struck out with costs. DATED, SIGNED AND DELIVERED VIRTUALLY IN NAIROBI THIS 21ST DAY OF MAY, 2026.O. A. ANGOTEJUDGEIn the presence of;Ms Okengo for Wambilianga for ApplicantsNo appearance for RespondentCourt Assistant: Tracy