1. Introduction
Locus standi, standing, or the right to bring court proceedings, was a site of procedural contestation. The contestation within the former legal order around technicalities and formalities made justice elusive. Environmental claims (though public-oriented) were routinely dismissed prematurely due to the alleged lack of sufficient interest in the matter by the Applicants.

Revisiting that era, this paper highlights concerning decisions of the superior courts regarding the locus standi of resident associations and societies. The paper argues that the ELC’s trend of technical approaches to locus elevates technicalities of procedure above substantive justice. This is a journey back to the past and a failure to fully align with the current Constitution.

Notably, these retrogressive decisions rely on an uncritical reading of the Societies Act (Cap 108). We show that courts must construe that statute through Section 7 of the Sixth Schedule to the Constitution, which commands that all pre2010 laws “be construed with the alterations, adaptations, qualifications and exceptions necessary to bring them into conformity” with the Constitution. A purposive reading reveals that nothing in Cap 108 bars a society from vindicating constitutional and environmental rights; at most, it is silent—and silence cannot trump Articles22,42,47,70 and 258.

2. Echoes of the Past: Locus Standi and Environmental Justice

The early doctrine was harsh. In Maathai v Kenya Times Media Trust Ltd (1989) 1KLR [1989] KEHC 2(KLR) the Court struck out the plaint, holding that Professor Maathai lacked a direct personal injury and therefore no standing to defend Nairobi’s green spaces.

That promise faltered gain in Law Society of Kenya v Commissioner of Lands & 2 Others [2001] where the High Court dismissed an action seeking to recover public land allocated in Eldoret. Ombija J held that the Law Society lacked standing because it had not shown an injury “over andk above” that suffered by the general public, and because it had failed to invoke representative suit procedures under Order 1 rule 8. The ruling underscored how a narrow view of “sufficient interest” could still defeat public interest claims even where the subject was plainly communal property.

In the case of Law Society of Kenya v Commissioner of Lands & Others, Nakuru High Court Civil Case No.464 of 2000, the Court held that:

Locus Standi signifies a right to be heard, a person must have sufficiency of interest to sustain his standing to sue in Court of Law.

The same theme reemerged outside pure environmental litigation in Kenya Bankers Association & others v Minister for Finance & another (No 4), Misc Civil Appl 908 of 2001 (24 Jan 2002). Faced with the Donde Bill, Mbaluto and Kuloba JJ were urged to strike out the petition on the ground that the Association, an unincorporated tradeunion of fortyeight banks, lacked capacity to sue. The Court rejected that plea and distilled a set of enduring principles:

• an association may litigate where its members are defined and ascertainable, the grievance is common, and the relief sought is identical;
• representative actions prevent an “avalanche of litigation” and are therefore consonant with efficient justice;
• what confers locus in public interest causes is “a minimal personal interest”, for procedural technicalities must never be allowed to “let justice bleed on the altar of technicality.

These three cases trace the arc from rigidity, to cautious liberalization, to the modern purposive reading that the Constitution demands.

3. Liberal Locus under the 2010 Constitution

First, under Article 70(1) of the Constitution, “any person” claiming that their right to a clean and healthy environment has been, is being or is likely to be, denied, violated, infringed, or threatened, may apply to a court for redress in addition to any other legal remedies available over the same matter.

“Person” under Article 260 of the Constitution “includes a company, association or other body of persons whether incorporated or unincorporated”. Indeed, in Mumo Matemu the Supreme Court found that a de-registered NGO could file a constitutional petition.

Second, under Article 22(2) of the Constitution and Rule 4(2)(iv) of Mutunga Rules, “an association acting in the interest of one or more of its members” can file a petition if the right to a clean and healthy environment is denied, violated or infringed or threatened. Resident associations have a similar right of access alleging constitutional violations outside the Bill of Rights under Article 258.

Furthermore, Article 47 guarantees every person the right to fair administrative action. The Fair Administrative Action Act, 2015 implements that promise. Section 7(1) of the Act empowers “any person who is aggrieved” to apply for review. Courts have read the phrase broadly. Article 47 guarantees every person fair administrative action. Section 7 of the Fair Administrative Action Act, 2015 empowers any “person who is aggrieved” to seek review where a decision is unlawful, unreasonable, or procedurally unfair. Nothing in the Act restricts that remedy to incorporated bodies.

Third, under Rule 5 of the Mutunga Rules, in constitutional petitions like this, neither joinder nor misjoinder can defeat a petition. Instead, on addition, joinder, substitution, and striking out of parties, Rule 5 of the Mutunga Rules directs:

The following procedure shall apply with respect to addition, joinder, substitution and striking out of parties—
(a) …

(b) A petition shall not be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every proceeding deal with the matter in dispute.

(c) Where proceedings have been instituted in the name of the wrong person as petitioner, or where it is doubtful whether it has been instituted in the name of the right petitioner, the Court may at any stage of the proceedings, if satisfied that the proceedings have been instituted through a mistake made in good faith, and that it is necessary for the determination of the matter in dispute, order any other person to be substituted or added as petitioner upon such terms as it thinks fit.

4. Back to the Past – Worrying Decisions of the Environment and Land Court Denying Resident Associations Standing

Despite such liberalised standing, the ELC has made worrying decisions, denying Resident Associations standing before the Court. The ELC has recently embraced procedural formalism. In Mbaazi Avenue Residents’ Association v Abundant Blessing Ltd ELC Pet No 5 of 2019, the Court struck out a petition solely because a society registered under the Societies Act “lacks capacity to sue in its own name.”

The reasoning leaned heavily on Mitikenda Residents Association v Njuguna and 3 Others ELC Pet No 5 of 2019, which had held that an unincorporated society cannot litigate even where environmental harm was pleaded. The pattern persisted in Muthaiga North Residents Association and Another v Countryside Villas Estate & 3 Others ELC Pet No 30 of 2021, where the respondents argued, and the court agreed, that North Residents’ Association & Another v Countryside Villas Estate & 3 Others ELC Pet No 30 of 2021, where the respondents argued, and the Court agreed, that “the 1st Petitioner has no locus standi.”

Even when an association is incorporated the Court has begun to treat standing as a hurdle rather than a gateway. In Northern Block Residents Limited v National Environment Management Authority & 2 others [2024] KEELC 6170 (KLR) the 3rd Respondent urged that the applicant “lacks locus standi” and should have pursued statutory alternatives first. Although the Court ultimately entertained the suit, it described locus as a “threshold question” and signalled that unincorporated bodies would fare no better.

Two themes run through these decisions. First, judges are reading the Societies Act as if it were a constitutional veto: unless a residents’ group registers as a company, it is treated as a legal nonperson. Second, the courts are ignoring their own procedural toolkit. Rule 5 of the Mutunga Rules instructs that a petition “shall not be defeated by reason of the misjoinder or nonjoinder of parties”; substitution is mandatory where an honest mistake is shown. By declining to invoke that rule the ELC elevates form over substance and, in effect, tells communities to litigate piecemeal or not at all.

The consequences are practical as well as doctrinal. Each dismissal delays substantive scrutiny of contested projects, erodes public confidence in environmental governance, and forces neighbourhoods to incur the cost of incorporation before they can even knock at the courthouse door. The trajectory thus mirrors the pre2010 era’s obsession with technical standing, the very mischief Articles 22,70 and 258 were drafted to cure.

These decisions privilege the Societies Act over Articles 22,42,47,70, and 258, thereby reviving the procedural hurdles that the 2010 Constitution was designed to bury. They also ignore the interpretive command in Article 259, which directs that the Constitution be construed in a manner that promotes its purposes, values, and principles, advances the rule of law, and permits the development of the law.

5. Retrogressive Decisions of the High Court on Locus

The High Court has, in several recent decisions, embraced an unduly formal view of legal personality that deprives resident associations and other unincorporated groups of the very access to justice that Articles 22,70 and 258 were meant to secure.

In Supreme Council of Kenya Muslims (SUPKEM) & another v Registrar of Societies; Omar & 2 others (Interested Parties) [2024] KEHC 1320 the Court sustained twin preliminary objections which asserted that a society “lacks the locus standi to institute proceedings in its own name” and that Section 41 of the Societies Act is couched in mandatory terms. The Judge agreed, holding that “societies registered under Cap 108 are not legal persons” and striking out all prayers framed in SUPKEM’s name. The ruling paid scant regard to Article 260’s definition of person and to Rule 5 of the Mutunga Rules, treating capacity as a threshold bar rather than a curable defect.

In Republic v Registrar of Societies Ex-parte Narok Muslim Welfare Association [2017] KEHC 7638 (KLR) the Court refused leave to amend pleadings so as to substitute officials for the society, insisting that “an issue of legal capacity is not a mere technicality.” The judgment has since become the go to authority for respondents seeking to weaponize the Societies Act against public interest litigants, notwithstanding its open conflict with Article 159’s command that justice be administered without undue regard to procedural technicalities.

Together, these decisions embolden defendants to weaponize the Societies Act against neighborhoodbased litigants, draining community resources in interlocutory skirmishes and deterring meritorious publicinterest suits. They also reveal a deeper jurisprudential tension: whether the High Court will treat Articles 22,47,70 and 258 as living guarantees of participatory justice or as promises that can be sidelined by preconstitutional statute. Unless the bench consciously realigns with the Supreme Court’s guidance in Mumo Matemu and the Constitution’s text, resident associations will continue

to run a procedural gauntlet before their environmental and planning grievances can ever be heard on the merits.

6. Outdated reading of the Societies Act
The real mischief lies in reading the Societies Act without the corrective lens of Section 7 of the Sixth Schedule of the Constitution. That provision states that every pre 2010 law “shall be construed with the alterations, adaptations, qualifications and exceptions necessary to bring it into conformity with this Constitution.” The Supreme Court treated the command as peremptory in Samuel Kamau Macharia v Kenya Commercial Bank Ltd (Appl No 2 of 2011) holding that a statute that undermines the Constitution must be restrained or invalidated. The Court reaffirmed the point in Mitu Bell Welfare Society v Kenya Airports Authority [2021] KESC 34, stressing that the Bill of Rights “illuminates and guides” every legislative text.

Two consequences follow. First, the Act’s silence on litigation capacity cannot override Articles 22,42,70 and 258, which open the courts to “any person,” a term Article 260 defines to include an unincorporated association. Second, Article 259 requires a meaning that advances the rule of law and fundamental freedoms whenever two readings are possible.

Courts that cling to a literal view of Section 41 overlook both commands. In Mitikenda Residents Association v Njuguna ELC Pet No.5 of 2019, the the Environment and Land Court equated “not a body corporate” with “legal nonperson,” ignoring this command. Older statutes must facilitate, not frustrate, rightsbased litigation. A purposive, rightscentered approach restores coherence and aligns Cap 108 with the participatory spirit of the 2010 Constitution.

7. Conclusion
Resident associations sit at the center of participatory environmental governance. The Constitution of Kenya, 2010, opened the courtroom doors wide and placed the Environment and Land Court as gatekeeper of that promise. The Court must therefore give full effect to Articles 70,22, and 258, read together with the Mutunga Rules, in a manner that favours access to justice. To refuse standing on the strength of the Societies Act or other procedural objections silences communities, resurrects the ghosts of the era before 2010, and shields environmental wrongs from judicial scrutiny.

The superior courts possess all the tools they need to arrest this regression. They can follow the lead of Mumo Matemu, embrace the purposive reading endorsed by the Supreme Court, and recognize resident associations as constitutional actors whether or not they hold certificates of incorporation. They can rely on Rule 5 to cure joinder defects, invite amendments where necessary, and decide disputes on their merits.

By taking these steps, the Court will not be fashioning new law; it will be giving life to the text and spirit of the Constitution. The result will be broader public participation, stronger environmental stewardship, and a jurisprudence that prizes substance over form. That is the path the Constitution commands, and it is the path the courts must now reclaim.