(Being an Appeal from the Ruling of Hon. Sandra Ogot, Principal Magistrate at Msambweni Law Courts dated 19/1/2024 in Civil Suit No. E040 of 2021)
JUDGMENT
1. The appellant brings this appeal through a memorandum of appeal dated 16/2/2024. The record of appeal is dated 28/5/2024. The appeal arises from the ruling of the trial court dated 19/1/2024 in which the trial court sustained a preliminary objection raised by the respondent and dated 14/7/2023 that the appellant/plaintiff in the suit before the trial court lacks locus standi and capacity to sue.
2. After hearing submissions by learned counsels for the parties, the learned trial magistrate found that the appellant who does not have a certificate of registration was an unincorporated legal person and thus could not bring the suit and was by law bound to sue through its registered and or elected officials.
3. The appellant was dissatisfied with that decision and now appeals to this court on the following grounds:
a. the learned magistrate erred in law and in fact in dismissing the plaintiff’s suit on grounds that it could not sue in its name but only sue through its registered and elected officials.
b. the learned magistrate erred in law and in fact by disallowing the appellant’s application dated 16/8/2023 which struck out the appellant from access to having its dispute heard and determined on merit.
c. the learned magistrate erred in law and in fact by using wrong principles in law on the assessment of damages.
d. the trial court erred in law and in fact in allowing the preliminary objection even before the suit was certified ready for hearing and before the parties fully complied with pre-trial directions.
e. the trial court erred in law and in fact in making a ruling based on procedural technicalities as opposed to determining the substantive issues based on the law and facts.
4. The appellant therefore prays to this court to allow the appeal, set aside the orders of the trial court made on 19/1/2024 and the appellant’s suit MC CC No. E040 of 2021 be heard and determined on merit.
5. The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
6. Learned counsel for the appellant submits that the learned trial magistrate was in error in her finding that the appellant had not produced a certificate of registration and therefore is an unincorporated legal person and thus could not bring the suit and was law bound to sue through its registered and or elected officials. Further that it was not registered in Kenya and had not shown that it had authority to operate within the borders of Kenya. Learned counsel submits that these are issues of evidence and it was not in dispute between the parties that the appellant was a non-governmental organization based in Germany, save for filling of registration certificate. Learned counsel submits that the pleadings had not been closed and the appellant had filed an application dated 16/8/2023 seeking leave of court to file further list of documents which was to include certificate of registration. Upon filing the same, the suit would have proceeded to hearing. Citing the cases of Oraro v Mbaja [2006] eKLR and Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 on what constitutes a preliminary objection, learned counsel submits that the trial court erred in entertaining a factual issue of production of evidence of registration certificate to be a point of law.
7. Learned counsel submits further that the learned trial magistrate mixed up issues of registration of an NGO with those of an unincorporated entity which can only sue through its registered officials and thereby arrived at n erroneous decision. He referred to the definition of a non-governmental organization under the Non-Governmental Organization Coordination Act (Cap. 134) Laws of Kenya and the case of Kituo cha Sheria vs John Ndirangu Kariuki & another (2013) eKLR to underscore that distinction.
8. Learned counsel for the respondent on his part maintains that the appellant lacks the legal capacity to sue and the learned trial magistrate did not err in law or in fact in arriving at the decision that she did. He submits that the appellant could not redeem its case through the application filed seeking to annex a certificate of registration because the affidavit supporting that application did not have such a certificate annexed to it and the learned magistrate duly considered that issue in her ruling.
9. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
10. The issue for determination is whether the learned magistrate was correct in her finding that the respondent had properly raised a preliminary objection which had to be considered and determined first and whether her ruling finding the preliminary objection to have merit was correct.
Analysis and Determination
11. An issue of whether or not a party has the locus standi or legal capacity to sue or to be sued is an issue of law and when raised, it has to be determined at the earliest opportunity lest the court embarks on considering a case that has no legs to stand on. It is a pure point of law and can be determined as a preliminary issue as it is capable of bringing the suit to an end if the preliminary objection is upheld (see the case of Turn Key International Trade Limited v Sunmatt Limited (Sundip Shah) (Civil Suit E406 of 2022) [2024] KEHC 2701 (KLR). It was therefore proper for the learned trial magistrate to take up, consider and determine the preliminary objection before proceeding further with the case including considering the appellant’s application dated 16/8/2023.
12. The subject issue of the preliminary objection before the trial court was the undisputed status of the appellant as a non-governmental organization (NGO) as pleaded in paragraph 4 of the amended plaint.
13. Learned counsel for the respondent submitted in support of the preliminary objection that a non-governmental organization is not a body corporate but a group of individuals operating as such and for certain purposes and is therefore not a ‘person’ in the eyes of the law. In that case, it lacked legal capacity to sue. He relied on the cases of Kipsiwo Community Self Help Group v Attorney General and 6 others [2013] eKLR where it was held that Self Help Groups having no legal personality, cannot institute proceedings in their own name and Ndaragwa Jua Kali Association v Attorney General & 14 others [2018] KEELC 4286 (KLR) where the court held that despite the Constitution of Kenya having recognized the right of associations to sue on behalf of their members, the associations cannot do that in their own name but through their registered trustees.
14. Clearly, the submissions by learned counsel that an NGO is not a body corporate was not correct and equally, his submissions based on the two authorities cited above were erroneous. An NGO, unlike a Self-Help Group or Association is not an unincorporated body. NGOs are governed by the Non-Governmental Organization Coordination Act (Cap. 134) which provides in section 12(3)(a) that a registered Non-Governmental Organization shall by virtue of such registration be a body corporate with perpetual succession capable in its name of suing and being sued.
15. The learned trial magistrate however appreciated this issue, laid down the law and clearly analysed it as it should.
16. The position is that there is no dispute that the appellant is an NGO and is registered as such in Germany. There is also no dispute that the appellant is operating in Kenya by way of providing sponsorship for Ujuzi na Ufundi Vocational Institute Ukunda, where the respondent is an official.
17. Section 22(1) of the Act provides that:
“It shall be an offence for any person to operate a Non-Governmental Organization in Kenya for welfare, research, health relief, agriculture, education, industry, the supply of amenities or any other similar purposes without registration and certificate under this Act.”
18. This means that for the appellant to operate as an NGO in Kenya, it has to be registered as such in spite of it being registered as such in Germany. It has not pleaded any where that it is registered as an NGO in Kenya. It was therefore in order for the learned trial magistrate to find that without being so registered, in its operations in Kenya, it could only be described as an association and not an NGO in which case, going by the decisions in Kipsiwo Community Self Help Group v Attorney General and 6 others [2013] eKLR and Ndaragwa Jua Kali Association v Attorney General & 14 others [2018] KEELC 4286 (KLR), it could not file the suit in its own name.
19. In the circumstances, I find no fault with the decision of the learned trial magistrate to uphold the preliminary objection and to strike out the suit as she did. I uphold the same and find that the appeal has no merit and the same is dismissed with costs.
20. Dated, signed and delivered at Kwale on the Virtual Platform, Teams this 15th of January 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Mukabana for Appellant.
N/A for the Respondent.
Daniel Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.
JUDGMENT
1. The appellant brings this appeal through a memorandum of appeal dated 16/2/2024. The record of appeal is dated 28/5/2024. The appeal arises from the ruling of the trial court dated 19/1/2024 in which the trial court sustained a preliminary objection raised by the respondent and dated 14/7/2023 that the appellant/plaintiff in the suit before the trial court lacks locus standi and capacity to sue.
2. After hearing submissions by learned counsels for the parties, the learned trial magistrate found that the appellant who does not have a certificate of registration was an unincorporated legal person and thus could not bring the suit and was by law bound to sue through its registered and or elected officials.
3. The appellant was dissatisfied with that decision and now appeals to this court on the following grounds:
a. the learned magistrate erred in law and in fact in dismissing the plaintiff’s suit on grounds that it could not sue in its name but only sue through its registered and elected officials.
b. the learned magistrate erred in law and in fact by disallowing the appellant’s application dated 16/8/2023 which struck out the appellant from access to having its dispute heard and determined on merit.
c. the learned magistrate erred in law and in fact by using wrong principles in law on the assessment of damages.
d. the trial court erred in law and in fact in allowing the preliminary objection even before the suit was certified ready for hearing and before the parties fully complied with pre-trial directions.
e. the trial court erred in law and in fact in making a ruling based on procedural technicalities as opposed to determining the substantive issues based on the law and facts.
4. The appellant therefore prays to this court to allow the appeal, set aside the orders of the trial court made on 19/1/2024 and the appellant’s suit MC CC No. E040 of 2021 be heard and determined on merit.
5. The appeal was canvassed by way of written submissions filed by learned counsels for both parties.
6. Learned counsel for the appellant submits that the learned trial magistrate was in error in her finding that the appellant had not produced a certificate of registration and therefore is an unincorporated legal person and thus could not bring the suit and was law bound to sue through its registered and or elected officials. Further that it was not registered in Kenya and had not shown that it had authority to operate within the borders of Kenya. Learned counsel submits that these are issues of evidence and it was not in dispute between the parties that the appellant was a non-governmental organization based in Germany, save for filling of registration certificate. Learned counsel submits that the pleadings had not been closed and the appellant had filed an application dated 16/8/2023 seeking leave of court to file further list of documents which was to include certificate of registration. Upon filing the same, the suit would have proceeded to hearing. Citing the cases of Oraro v Mbaja [2006] eKLR and Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd (1969) EA 696 on what constitutes a preliminary objection, learned counsel submits that the trial court erred in entertaining a factual issue of production of evidence of registration certificate to be a point of law.
7. Learned counsel submits further that the learned trial magistrate mixed up issues of registration of an NGO with those of an unincorporated entity which can only sue through its registered officials and thereby arrived at n erroneous decision. He referred to the definition of a non-governmental organization under the Non-Governmental Organization Coordination Act (Cap. 134) Laws of Kenya and the case of Kituo cha Sheria vs John Ndirangu Kariuki & another (2013) eKLR to underscore that distinction.
8. Learned counsel for the respondent on his part maintains that the appellant lacks the legal capacity to sue and the learned trial magistrate did not err in law or in fact in arriving at the decision that she did. He submits that the appellant could not redeem its case through the application filed seeking to annex a certificate of registration because the affidavit supporting that application did not have such a certificate annexed to it and the learned magistrate duly considered that issue in her ruling.
9. This being a first appeal, the duty of this court is to re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
10. The issue for determination is whether the learned magistrate was correct in her finding that the respondent had properly raised a preliminary objection which had to be considered and determined first and whether her ruling finding the preliminary objection to have merit was correct.
Analysis and Determination
11. An issue of whether or not a party has the locus standi or legal capacity to sue or to be sued is an issue of law and when raised, it has to be determined at the earliest opportunity lest the court embarks on considering a case that has no legs to stand on. It is a pure point of law and can be determined as a preliminary issue as it is capable of bringing the suit to an end if the preliminary objection is upheld (see the case of Turn Key International Trade Limited v Sunmatt Limited (Sundip Shah) (Civil Suit E406 of 2022) [2024] KEHC 2701 (KLR). It was therefore proper for the learned trial magistrate to take up, consider and determine the preliminary objection before proceeding further with the case including considering the appellant’s application dated 16/8/2023.
12. The subject issue of the preliminary objection before the trial court was the undisputed status of the appellant as a non-governmental organization (NGO) as pleaded in paragraph 4 of the amended plaint.
13. Learned counsel for the respondent submitted in support of the preliminary objection that a non-governmental organization is not a body corporate but a group of individuals operating as such and for certain purposes and is therefore not a ‘person’ in the eyes of the law. In that case, it lacked legal capacity to sue. He relied on the cases of Kipsiwo Community Self Help Group v Attorney General and 6 others [2013] eKLR where it was held that Self Help Groups having no legal personality, cannot institute proceedings in their own name and Ndaragwa Jua Kali Association v Attorney General & 14 others [2018] KEELC 4286 (KLR) where the court held that despite the Constitution of Kenya having recognized the right of associations to sue on behalf of their members, the associations cannot do that in their own name but through their registered trustees.
14. Clearly, the submissions by learned counsel that an NGO is not a body corporate was not correct and equally, his submissions based on the two authorities cited above were erroneous. An NGO, unlike a Self-Help Group or Association is not an unincorporated body. NGOs are governed by the Non-Governmental Organization Coordination Act (Cap. 134) which provides in section 12(3)(a) that a registered Non-Governmental Organization shall by virtue of such registration be a body corporate with perpetual succession capable in its name of suing and being sued.
15. The learned trial magistrate however appreciated this issue, laid down the law and clearly analysed it as it should.
16. The position is that there is no dispute that the appellant is an NGO and is registered as such in Germany. There is also no dispute that the appellant is operating in Kenya by way of providing sponsorship for Ujuzi na Ufundi Vocational Institute Ukunda, where the respondent is an official.
17. Section 22(1) of the Act provides that:
“It shall be an offence for any person to operate a Non-Governmental Organization in Kenya for welfare, research, health relief, agriculture, education, industry, the supply of amenities or any other similar purposes without registration and certificate under this Act.”
18. This means that for the appellant to operate as an NGO in Kenya, it has to be registered as such in spite of it being registered as such in Germany. It has not pleaded any where that it is registered as an NGO in Kenya. It was therefore in order for the learned trial magistrate to find that without being so registered, in its operations in Kenya, it could only be described as an association and not an NGO in which case, going by the decisions in Kipsiwo Community Self Help Group v Attorney General and 6 others [2013] eKLR and Ndaragwa Jua Kali Association v Attorney General & 14 others [2018] KEELC 4286 (KLR), it could not file the suit in its own name.
19. In the circumstances, I find no fault with the decision of the learned trial magistrate to uphold the preliminary objection and to strike out the suit as she did. I uphold the same and find that the appeal has no merit and the same is dismissed with costs.
20. Dated, signed and delivered at Kwale on the Virtual Platform, Teams this 15th of January 2025.
ANDAYI W. F.
JUDGE
In the presence of:
Mukabana for Appellant.
N/A for the Respondent.
Daniel Court Assistant.
This decision is uploaded on the Judiciary Case Tracking System for immediate access by the parties upon upload.