Grace Wairimu Sorora (Suing On Behalf Of The Estate Of Sorora Oloitiptip) & 2 others v Chaka Limited & 10 others [2015] KEELC 555 (KLR)
The bottom line
#A Nairobi landowner who occupied disputed property lost her adverse possession claim because she fell two years short of Kenya's 12-year requirement and must now vacate.
What this practically means
#Executive summary
#Key legal issues
#Validity of suit against a company in liquidation without leave
The suit against Pan Africa Credit and Finance Ltd (In Liquidation) was struck out as a nullity since no leave under section 228 of the Companies Act was obtained; the earlier leave in Misc. Application No. 54 of 2007 related only to Kibucho Ltd
Section 228 of the Companies Act is mandatory: no action may be commenced against a company in liquidation except by leave of the court. The order of 12 June 2007 granted leave only to sue Kibucho Ltd. The plaint against Pan Africa Credit and Finance Ltd was filed on 2 December 2010 without any prior application for leave. Consolidation could not cure this defect, and the authorities cited establish that such proceedings are null and void.
Alleged fraudulent transfer to Chaka Ltd
Fraud against Chaka Ltd was not proved; the transfer was effected under statutory power of sale by parties not bound by section 52 of the Transfer of Property Act's lis pendens rule, and the dating anomaly was satisfactorily explained
Section 52 of the repealed Transfer of Property Act binds only parties to the pending suit. At the date of transfer (16 July 2009) Chaka Ltd and Pan Africa Credit and Finance Ltd were not parties to HCCC 723 of 2008. The advocate for Ashford Kangethe swore that the transfer was erroneously dated 11 June 2008 instead of 11 June 2009, corroborated by the registration and stamp duty records. No evidence showed Chaka Ltd's participation in the cancellation of the decree entry.
Adverse possession
Grace Wairimu Sorora failed: occupation was proved only from 1985, and Kibucho Ltd's suit in HCCC No. 3178 of 1995 asserted the owner's rights within the 12-year limitation period, stopping time from running
Actual possession was evidenced only by the letter of 20 August 1985 allocating the site. Occupation from 1985 until the filing of Kibucho Ltd's suit on 26 October 1995 was only 10 years. A suit seeking eviction of squatters and vacant possession constitutes an assertion of the owner's right that arrests the running of time under section 7 of the Limitation of Actions Act, irrespective of unsuccessful attempts at sale by the chargee.
Approved building plans and enforcement notice
The plan DV-48 relied upon was not proved to be an approved plan; conflicting expert evidence and differences between the original and certified copy meant the Court could not find the signature genuine, and the suit against Nairobi City Council failed
DW3, the alleged approving officer, denied signing or approving the plan and testified he was not an authorised signatory in 2005. PW2's forensic report did not attach the documents examined so it could not be confirmed he examined the disputed plan, while DW4 examined a photocopy. The original plan differed from the certified copy filed. The Court thus found the plans not approved, and the enforcement notice lawful.
Reliefs in the Counterclaim
Chaka Ltd, as indefeasible registered owner, was granted a mandatory injunction for vacant possession and nominal damages of Kshs 100,000 for trespass, but refused damages for loss of user
Chaka Ltd's title was unimpugned and it produced evidence of purchase and payment. As registered proprietor it is entitled to possession and to proceedings in trespass. However, no evidence of market rental value was produced for loss of user, which is a claim for mesne profits requiring strict proof, and the property was bought on an 'as is' basis with squatters in occupation.
Legal principles established
#- Consolidation of suits cannot cure defects such as want of statutory leave to sue a company in liquidation; such a suit is a nullity
- The exercise of a statutory power of sale without court intervention is not a 'legal proceeding' for purposes of interrupting the running of adverse possession
- Time under the Limitation of Actions Act ceases to run when the true owner takes legal proceedings or makes an effective entry into the land
- Damages for loss of user are in the nature of special damages (mesne profits) and must be both pleaded and strictly proved
Court orders
#- 1.Grace Wairimu Sorora and/or her agents and servants to vacate L.R. No. 209/9749 and remove all structures thereon within 30 days of the date of judgment; upon default the Nairobi County Government and Chaka Ltd at liberty to evict and demolish, and eviction orders to issue
- 2.Grace Wairimu Sorora to pay Chaka Ltd Kshs 100,000/= as nominal damages for trespass with interest at court rates from the date of judgment until payment in full
- 3.The prayers by Grace Wairimu Sorora in the Originating Summons and various Plaints filed in ELC 340 of 2010, ELC 592 of 2010 and ELC 29 of 2012 are denied
- 4.The prayers by Ashford Kangethe trading as Toi Educational Services in the Plaint filed in ELC 564 of 2010 are denied
- 5.Each party to bear their own costs of the consolidated suits
- Jurisdiction invoked
- Environment and Land Court jurisdiction over suits relating to land (Art. 162(2) of the Constitution as implemented by the Environment and Land Court Act); all suits transferred from the High Court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grace Wairimu Sorora (Suing On Behalf Of The Estate Of Sorora Oloitiptip) & 2 others v Chaka Limited & 10 others [2015] KEELC 555 (KLR)", Case Analysis (2015). ELC 340 of 2010 (consolidated with ELC 564 of 2010, ELC 592 of 2010 and ELC 29 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/555/eng@2015-03-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.