Can You Even Sue That? What “Legal Personality” Means for Your Litigation Strategy

When a dispute arises, the instinct is often to name every entity that touched the decision as a respondent. It feels thorough. But naming the wrong party ( or a party that legally cannot be sued at all) can quietly undermine an otherwise strong case.

A recent constitutional petition before the High Court at Meru offers a useful, low-cost lesson in why this matters.

The Case

In Antony Murimi Wachira & 3 Others v Chairperson, Assumption of the Office of the Meru County Governor Committee & 3 Others (Constitutional Petition E006 of 2025), the petitioners sued not only the Chairperson of an ad hoc body but the body itself (the “Assumption of the Office of the Meru County Governor Committee” ) as the 2nd Respondent.

In their Grounds of Opposition, the Respondents raised a pointed objection: the ad hoc 2nd Respondent lacked legal personality and could not properly be sued in its own name. C.B. Mwongela & Co. Advocates, acting for the Independent Electoral and Boundaries Commission as an Interested Party in the matter, was positioned within a case where this kind of structural objection was central to how the litigation was framed and defended.

The petition was ultimately dismissed on other procedural grounds (non-appearance), so the court did not need to rule on the legal-personality objection specifically, but the point it raises applies well beyond this one case.

Why “Legal Personality” Is Not a Technicality to Ignore

In Kenyan law, only a “legal person” ( a natural person, a body corporate, or a body specifically empowered by statute to sue and be sued in its own name) can be a party to litigation. Ad hoc committees, informal working groups, internal panels, and task forces are frequently created to carry out a specific function, but unless a statute or instrument expressly gives them the capacity to sue or be sued, they are not, in law, capable of being a party to a suit.

This cuts both ways, and it’s worth thinking about from either side of a dispute:

If you’re bringing a claim: Naming an entity without legal personality as a respondent can result in that respondent being struck out, weakening your case structure and potentially leaving you without a remedy against the individuals or bodies who actually made the decision you’re challenging.

If you’re defending a claim: Identifying that an opposing party has sued the wrong entity (or a non-entity) is a legitimate and often decisive line of defence, one that can dispose of part or all of a case before the substantive issues are ever reached.

The Practical Takeaway

For businesses, in-house counsel, and compliance teams, the operational lesson is this: before initiating litigation, confirm precisely who the correct legal respondent is: not the department, committee, or team that made the decision, but the legal entity capable in law of answering for it. And before assuming a claim against your organisation is straightforward, check whether the claimant has actually got the right defendant in the first place.

It’s a detail that’s easy to overlook in the urgency of a dispute, and one that experienced counsel checks as a matter of course.

C.B. Mwongela & Co. Advocates advises corporate and institutional clients on litigation strategy, including the structuring and defence of claims around proper parties and legal capacity.