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Court of AppealDismissedCivil Appeal No. 221 of 2016· [2020] KECA 639 (KLR)

Loise M. Wambua v Kenyatta University & another [2020] KECA 639 (KLR)

Court of Appeal
22 May 2020
WKW. KaranjaHOHannah OkwenguFSF. Sichale
3,334 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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The Court of Appeal confirmed that co-operative members in Kenya must pay agreed dues or lose their plots, and receipts alone don't prove a land sale.

What this practically means

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Executive summary

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The appellant, a former employee of Kenyatta University, participated in a 1998 staff scheme to purchase land, making payments evidenced by receipts issued by the University. In 2003, Kenyatta University Boma Co-operative Society Limited (2nd respondent) was incorporated to manage the land, which was transferred directly to it by the vendor. The appellant declined to pay a Kshs 215,000 development contribution resolved upon by members, and the Society moved to repossess and sell her plot. She sued for permanent injunction, allocation of the plot and damages. Onguto, J dismissed the suit save for a refund of Kshs 316,250 with interest at 12% per annum from 1st January 2008. On appeal, the Court of Appeal, exercising its first-appeal mandate as restated in Selle v Associated Motor Boat Co, upheld the trial court. It held that the University had never owned the land and thus the receipts could not constitute a sale agreement or memorandum in writing. It affirmed the finding that the appellant was a member of the Society, having attended its meetings and paid subscription fees until 2007, and was bound by members' resolutions that plots of non-paying members be repossessed. The court also held that the appellant could not claim the enhanced market value of the plot since the enhancement was funded by other members' contributions, and that the interest awarded sufficiently catered for inflation. The appeal was dismissed with no order as to costs, each party bearing its own costs.

Key legal issues

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01

Whether the appellant's payment receipts amounted to a sale agreement with the 1st respondent

Holding

They did not; the 1st respondent was not a vendor and never owned the land.

Reasoning

The court found that Kenyatta University merely facilitated the acquisition of land by its employees and at no time was seized of the land, which was transferred directly from the vendor to the 2nd respondent upon incorporation. Lacking ownership and capacity to sell, it could not have issued a sale agreement, so the receipts were acknowledgments of payment, not a memorandum of a contract of sale.

p. 5
02

Whether the appellant was a member of the 2nd respondent bound by its resolutions

Holding

Yes; she attended meetings, paid subscription fees until 2007, and was bound by resolutions for repossession on non-payment.

Reasoning

The court endorsed the trial judge's finding that the appellant attended meetings of the 2nd respondent including the meeting discussing its registration, appeared in quorums in the minutes, and paid monthly subscription fees of Kshs 200 from 2003 to May 2007. Having failed to pay the development contribution of Kshs 215,000 despite extensions, she was bound by the members' resolutions that plots of non-compliant members be repossessed and sold.

p. 4
03

Whether the refund award should have reflected the enhanced market value of the plot

Holding

No; the enhancement flowed from other members' contributions, and the interest awarded sufficed.

Reasoning

The plot's value rose because members paid Kshs 215,000 each for roads, a perimeter wall, a borehole and storm water drains. The appellant refused to pay these sums, contributing nothing to the enhancement. It would be unjust to let her benefit from infrastructure she refused to fund; the interest on the refund adequately catered for inflation.

p. 6

Legal principles established

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  • On a first appeal, the Court of Appeal must reconsider and evaluate the evidence afresh and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses.
  • A member of a co-operative society is bound by resolutions validly passed at its general meetings, including resolutions permitting repossession of plots for non-payment of dues.
  • A party who did not contribute to developments that enhanced the value of land cannot claim the benefit of that enhanced value.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Each party shall bear their own costs

Authorities

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Cases cited (4)

  • Storer vs. Manchester City
    [1974] 1 W.L.R. 1403
  • Esther Nyambura Kariuki vs. Simeon Muthuku Munjuga
    [2018] eKLR
  • Selle vs. Associated Motor Boat Co. of Kenya & others
    [1968] EA 123
  • Abdul Hameed Saif –vs- Ali Mohamed Sholan
    (1955) 22 EACA 270
On appeal from
Environment and Land Court
ELC Case No. 367 of 2009
Jurisdiction invoked
First appeal to the Court of Appeal under its appellate jurisdiction (appeal from the High Court/Environment and Land Court)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Loise M. Wambua v Kenyatta University & another [2020] KECA 639 (KLR)", Case Analysis (2020). Civil Appeal No. 221 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/639/eng@2020-05-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.