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ELCOtherNot stated in the judgment· [2018] KEELC 1760 (KLR)

Thogoto Ukai Self Help Group & another v Joseph Gachoki Gitaru t/a Geo Acre Surveys& 3 others [2018] KEELC 1760 (KLR)

Environment and Land Court
28 September 2018
LGL. GACHERU
1,727 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan land court paused a property dispute because rival leaders of a self-help group each claimed to be genuine, pending a criminal case.

What this practically means

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Executive summary

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The 1st and 2nd Plaintiffs sued on 19th January 2017 seeking nullification of all approvals and entries in respect of LR.No.2256/8 (originally 2256/7/1) made on the strength of documents provided by the 1st Defendant, a surveyor, and revocation and expungement of those approvals by the 2nd and 3rd Defendants. They simultaneously sought temporary injunctions restraining the 1st Defendant from interfering with the property and the registry from acting on documents provided by him. The 1st Defendant opposed, stating he was instructed to survey the land by the Chairman of the 1st Plaintiff, Protus Inziani Majanje, by letter dated 15th January 2016, and submitted 149 deed plans to the 2nd Defendant. Before the application was heard, the firm Maina & Maina Advocates filed a notice of change of advocates claiming to act for the 1st Plaintiff and sought to withdraw the suit, alleging instructions from the Chairman's faction, while EKN LLP Advocates claimed instructions from a rival faction led by James Wahome Kibaki. The District Social Development Officer confirmed conflicting office bearers, and the court found serious leadership wrangles. Because the faction that instructed EKN LLP Advocates faced criminal charges under Sections 129 and 357(a) of the Penal Code relating to the minutes used to give instructions, the court found it could not determine who legitimately instructed advocates. It stayed the suit until Criminal Case No.271 of 2017 at Milimani Law Courts is determined, while preserving the suit property through a registered status quo order barring subdivision, alienation, charging or transfer, and allowing members to continue using, cultivating and living on the land. The final orders were issued on 28th September 2018.

Key legal issues

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01

Authority to represent the 1st Plaintiff amid leadership wrangles

Holding

The court could not confirm either faction as genuine office bearers because the criminal charges against one faction remain pending and crucial documents are with the CID

Reasoning

Two rival factions each claimed to be the legitimate office bearers of the self help group and each gave conflicting instructions to advocates. The faction that instructed EKN LLP Advocates faces criminal charges of giving false information and making documents without authority relating to the very minutes used to instruct the advocates. The court could not resolve the dispute without the criminal case outcome and the return of documents held by investigators.

p. 3
02

Preservation of the suit property

Holding

Status quo was to be maintained and registered on the title

Reasoning

Although the court stayed the suit, it held that the land itself needed preservation. It ordered that there be no further subdivision, alienation, charging or transfer, with the restriction registered by the Kiambu Land Registrar, while permitting members to continue their ordinary use and occupation of the land.

p. 3

Legal principles established

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  • Where there is a genuine conflict as to who has authority to instruct advocates and the determination depends on a pending criminal case, the court may stay the suit until that case is determined

Court orders

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  1. 1.Stay of the suit until the hearing and determination of Criminal Case No.271 of 2017 at Milimani Law Courts
  2. 2.Maintenance of the prevailing status quo on the suit property with no further subdivision, alienation, charging or transferring until further orders
  3. 3.The status quo order to be registered on the title by the Kiambu Land Registrar
  4. 4.Members of the 1st Plaintiff to continue using, cultivating and/or living on the suit property as they have always done

Authorities

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Legislation

  • Penal CodeSection 129
  • Penal CodeSection 357(a)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property LR.No.2256/8

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, "Thogoto Ukai Self Help Group & another v Joseph Gachoki Gitaru t/a Geo Acre Surveys& 3 others [2018] KEELC 1760 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1760/eng@2018-09-28

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