Essolly Enterprises Limited v Benjoh Amalgamated Limited [2019] KEELC 2341 (KLR)
The bottom line
#A Kenyan court struck out a land claim because the company suing had no board resolution and no certified title extract was attached.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff proved the Defendant's registered ownership of the suit land as required for a claim of adverse possession
The claim failed because the Plaintiff relied only on sale agreements and did not annex a certified extract of the title as mandated by Order 37 Rule 7(2) of the Civil Procedure Rules
The court held that adverse possession can only be granted against a registered proprietor, and the claimant must prove registration by producing the title or certified extract of title, whether by affidavit or at trial. A sale agreement is not the document envisaged by law to prove ownership. The Originating Summons and supporting affidavit had no certified extract of the register annexed, contravening Order 37 Rule 7(2), so the Plaintiff failed to prove its claim on a balance of probabilities.
Whether the proceedings were authorized by a resolution of the company
The suit was a nullity as there was no company resolution or letter of authority authorizing the institution of the proceedings or the swearing of the supporting affidavit
Relying on Bugerere Coffee Growers Ltd v Sebaduka, Omondi v National Bank of Kenya and Philomena Ndanga Karanja v Edward Kamau Maina, the court held that a company must authorize proceedings by a resolution recorded in minutes. The supporting affidavit was sworn by a director without any exhibited resolution or letter of authority. The proceedings in the name of the limited liability company were therefore not sanctioned and were a nullity, with personal costs consequences for the advocates.
Legal principles established
#- An order of adverse possession can only be made against a Respondent who is registered as an owner of land, and the claimant must produce the title or a certified extract of the title.
- A claim for adverse possession under Section 38 of the Limitation of Actions Act must be supported by an affidavit to which a certified extract of the title is annexed.
- A suit instituted in the name of a company without a valid company resolution authorizing the proceedings is a nullity.
- Where an advocate has brought legal proceedings without authority of the purported plaintiff, the advocate becomes personally liable for the costs of the action.
Court orders
#- 1.The Originating Summons dated 30th May 2013 struck out
- 2.Costs to be met by the firm of Keronge Bosire & Company Advocates and Wachakana Advocates jointly and severally for acting without authority
- Jurisdiction invoked
- Section 38 of the Limitation of Actions Act (Cap 22) and Order 37 Rules 3, 7, 8 and 9 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Essolly Enterprises Limited v Benjoh Amalgamated Limited [2019] KEELC 2341 (KLR)", Case Analysis (2019). ELC Originating Summonses No. 98 of 2017 (Formerly Nakuru (OS) No. 400 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2341/eng@2019-07-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.