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ELCPartially AllowedELC Case No. 1201 of 2014 (formerly Machakos HCCC No. 264 of 2014)· [2016] KEELC 1103 (KLR)

Joseph Nganga Ndungu & 10 others v Versus Original Wapenda Afya Bidii Housing Co-Operative Society Limited (O.W.A.B) [2016] KEELC 1103 (KLR)

Environment and Land Court
29 January 2016
3,313 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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What this practically means

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Executive summary

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The plaintiffs brought this suit against the defendant, a co-operative society, claiming that between March 2009 and April 2010 the defendant sold to them twelve parcels of land carved out of LR No. 4148/307 and LR No. 4148/308 and that the defendant had failed to issue them with title deeds and was instead seeking to sell the properties to third parties. Together with the plaint, the plaintiffs filed a Notice of Motion dated 18th December 2014 seeking a temporary injunction to restrain the defendant from trespassing on, disposing of or interfering with the suit properties pending the hearing and determination of the suit. The application was opposed by the defendant through the replying affidavit of its secretary who denied that the defendant sold the suit properties to the plaintiffs, denied receiving any purchase price, and contended that the documents relied on by the plaintiffs were forgeries perpetrated by one John Ngei Vuti, a surveyor formerly engaged by the defendant, who had been charged in criminal proceedings. The court, applying the principles in Giella v Cassman Brown & Company Limited, held that only the 1st, 2nd, 4th, 5th, 6th, 7th and 9th plaintiffs had established a prima facie case with a probability of success against the defendant, having exhibited agreements for sale drawn by the defendant's own advocates at the material time, receipts and certificates of ownership, none of which had been controverted by any forensic report placed before the court. The court held that the 3rd, 8th, 10th and 11th plaintiffs had not established a prima facie case as they had no written agreements with the defendant, their claims being founded on agreements with third parties not joined to the suit, and that by virtue of section 38(1) of the Land Act, 2012 no suit could be maintained upon such unwritten contracts. The court granted the injunction in favour of the successful plaintiffs in respect of plot numbers 12, 13, 17, 22, 26, 27 and 28 and dismissed the application as against the unsuccessful plaintiffs, with costs of the application in the cause.

Key legal issues

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01

Whether the plaintiffs established a prima facie case with a probability of success against the defendant

Holding

Only the 1st, 2nd, 4th, 5th, 6th, 7th and 9th plaintiffs established a prima facie case; the 3rd, 8th, 10th and 11th plaintiffs did not as they failed to produce written agreements for sale directly linking them to the defendant

Reasoning

The court weighed the documentary evidence adduced by the plaintiffs against the denials in the defendant's replying affidavit. It found that the agreements for sale of the seven successful plaintiffs were drawn and executed by the defendant's advocates, were witnessed by an advocate, and had not been controverted by any forensic report placed before the court. The other plaintiffs either had no agreement or derived their claims from agreements with third parties who were not joined to the suit, hence no prima facie case was established against the defendant.

02

Whether the plaintiffs would suffer irreparable injury which cannot be compensated by an award of damages

Holding

The 1st, 2nd, 4th, 5th, 6th, 7th and 9th plaintiffs would suffer irreparable injury as the defendant may dispose of the suit properties to third parties, putting the properties beyond their reach

Reasoning

The court observed that there was a reasonable apprehension that if the defendant was not restrained it may dispose of the suit properties which had appreciated in value following the construction of the Thika Superhighway, thereby making it impossible for the successful plaintiffs to recover the properties even if they ultimately succeeded in the suit.

p. 5
03

Whether a suit founded on an oral contract for the disposition of an interest in land is maintainable

Holding

No suit shall be brought upon a contract for the disposition of an interest in land unless the contract is in writing and signed by all the parties thereto as provided under section 38(1) of the Land Act, 2012

Reasoning

The court held that the 3rd, 8th, 10th and 11th plaintiffs had not exhibited any written agreement for sale between themselves and the defendant, and their claims were founded on agreements with third parties who were not parties to the suit. In the absence of a written contract signed by the defendant, the court held that no suit could be maintained by those plaintiffs against the defendant.

p. 5

Legal principles established

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  • A party who seeks an equitable remedy such as an injunction must do equity and come to court with clean hands
  • A contract for the disposition of an interest in land must be in writing and signed by all the parties thereto as required under section 38(1) of the Land Act, 2012, failing which no suit can be maintained upon it

Court orders

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  1. 1.Temporary injunction granted restraining the defendant, its agents, servants and/or employees from selling, alienating, transferring, trespassing on, disposing of, interfering with, evicting the plaintiffs from or in any manner dealing with plot numbers 12, 13, 17, 22, 26, 27 and 28 pending the hearing and determination of this suit
  2. 2.The application dated 18th December 2014 dismissed against the 3rd, 8th, 10th and 11th plaintiffs
  3. 3.The 1st, 2nd, 4th, 5th, 6th, 7th and 9th plaintiffs granted the injunction in respect of the suit properties
Jurisdiction invoked
Article 162(2)(b) of the Constitution of Kenya, 2010 read with the Environment and Land Court Act, 2011

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Nganga Ndungu & 10 others v Versus Original Wapenda Afya Bidii Housing Co-Operative Society Limited (O.W.A.B) [2016] KEELC 1103 (KLR)", Case Analysis (2016). ELC Case No. 1201 of 2014 (formerly Machakos HCCC No. 264 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/1103/eng@2016-01-29

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