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ELCPartially AllowedEldoret High Court Civil Suit (application dated 12th May, 2016)· [2017] KEELC 2658 (KLR)

Hasham Lalji Properties Limited v Philip Kimaiyo Komen & 2 others [2017] KEELC 2658 (KLR)

Environment and Land Court
15 June 2017
AOA. OMBWAYO
3,662 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Environment & Land Court struck out a family company's land suit because it wasn't the registered owner and never joined the alleged trustee.

What this practically means

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Executive summary

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The 1st and 2nd defendants applied by a notice of motion dated 12th May 2016 for the striking out of the plaintiff's suit concerning L.R. No. Eldoret Municipality Block 8/168 and Block 9/169. They argued that the suit, filed on 18th April 2014, was instituted by a non-existent company (alleging incorporation in 2016), that the plaintiff lacked locus standi as the properties were registered in the name of Bahadurali Hasham Lalji whose 99-year lease expired on 1st August 2007, and that the suit was frivolous, vexatious and an abuse of court process. The plaintiff countered that it was incorporated on 6th August 1952, that Lalji held the land in trust for the family company, and that issues of trust and the legality of the 3rd defendant's allotment required a full hearing. The court framed three issues: cause of action, corporate existence, and abuse of process. Applying DT Dobie v Muchina and Sections 24, 25 and 26(1) of the Land Registration Act, it held that only a registered proprietor may enforce rights over land and that the plaintiff, not being the registered owner, disclosed no cause of action; further, the trust claim could not stand because the alleged trustee was not a party and had not confirmed the trust by affidavit. On corporate existence, the court declined to make a finding, being in doubt on the conflicting evidence. It also found no basis for the abuse-of-process allegations. The court nevertheless struck out the entire suit with costs, while expressly finding that the pleadings were not scandalous, frivolous, vexatious or an abuse of process.

Key legal issues

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01

Whether the plaintiff disclosed a reasonable cause of action against the defendants

Holding

The plaintiff failed to disclose a cause of action because it is not the registered owner of the suit parcels and the alleged trustee was not joined

Reasoning

The suit properties are registered in the name of Bahadurali Hasham Lalji, who holds the certificate of lease. Under Sections 24, 25 and 26(1) of the Land Registration Act, only the registered owner may enforce rights in the land, and any trust should appear on the title. The plaintiff's trust claim required the alleged trustee to be a party, and he neither was joined nor confirmed the trust by affidavit. The suit therefore disclosed no cause of action and was struck out.

p. 4
02

Whether the court should determine the plaintiff's corporate existence at the striking-out stage

Holding

The court declined to make a finding on the plaintiff's existence given the conflicting evidence

Reasoning

The defendants relied on a letter from the Registrar of Companies dated 22nd October 2014 asserting non-existence; the plaintiff produced a certificate of registration and memorandum and articles of association. The court noted it was incumbent on the plaintiff to seek clarification from the Registrar, but being in doubt as to the company's status, it declined to resolve the issue on affidavit evidence.

p. 4
03

Whether the suit is scandalous, frivolous, vexatious or an abuse of the process of the court

Holding

The court found no basis for the abuse-of-process claim

Reasoning

Applying definitions from Blake v Albion Life Ass. Society and other English authorities, and the Court of Appeal decisions in Co-Operative Merchant Bank v Wekesa and Yaya Towers v Trade Bank, the court held that striking out is draconian and should be exercised sparingly; the pleadings were not shown to be scandalous, frivolous, vexatious or abusive, though the suit was struck out for want of a cause of action.

p. 6

Legal principles established

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  • Only a registered proprietor may enforce rights in registered land; a trust must be shown on the title
  • Registration vests absolute ownership in the registered proprietor
  • A non-party cannot be the conduit for a trust claim; the alleged trustee must be before the court

Court orders

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  1. 1.The suit is struck out
  2. 2.Costs of the application awarded to the defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 4, Rule 1(4) & 6
  • Civil Procedure Rules, 2010Order 2 rule 15
  • Land Registration Act (No. 3 of 2012)Section 24(a)
  • Land Registration Act (No. 3 of 2012)Section 25(1)
  • Land Registration Act (No. 3 of 2012)Section 26(1)
  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 47
  • Land ActSection 13
  • National Land Commission ActSection 14

Cases cited (12)

  • DT Dobie & Company (K) Ltd vs Muchina
  • Blake vs. Albion Life Ass. Society
    (1876) LJQB 663
  • Marham vs. Werner, Beit & Company
    (1902) 18 TLR 763
  • Christie vs. Christie
    (1973) LR 8 Ch 499
  • Dawkins vs. Prince Edward of Save Weimber
    (1976) 1 QBD 499
  • Chaffers vs. GoldsMid
    (1894) 1 QBD 186
  • Willis Vs. Earl Beauchamp
    (1886) 11 PD 59
  • Strokes Vs. Grant
    (1878) AC 345
  • Hardnbord vs. Monk
    (1876) 1 Ex. D. 367
  • Preston vs. Lamont
    (1876)
  • The Co-Operative Merchant Bank Ltd. vs. George Fredrick Wekesa
    Civil Appeal No. 54 of 1999
  • Yaya Towers, Limited vs. Trade Bank Limited (In Liquidation)
    Civil Appeal No. 35 of 2000
Jurisdiction invoked
Original civil jurisdiction over land dispute; Civil Procedure Rules, 2010 (Order 2 rule 15; Order 4 Rule 1(4) & 6)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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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, "Hasham Lalji Properties Limited v Philip Kimaiyo Komen & 2 others [2017] KEELC 2658 (KLR)", Case Analysis (2017). Eldoret High Court Civil Suit (application dated 12th May, 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2658/eng@2017-06-15

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