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ELCDismissedNot stated in the judgment (suit commenced by plaint dated 24th October 2002)· [2019] KEELC 2998 (KLR)

Joseph Mbuva v Waicakehiri Farmers Co-operative Soceity Ltd (Sued through Chairman Robert Kimathi Marete) [2019] KEELC 2998 (KLR)

Environment and Land Court
3 June 2019
ECE.C. Cherono
2,398 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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The court dismissed a land buyer's claim because he contracted with an individual, not the co-operative company that owned the land.

What this practically means

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Executive summary

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The plaintiff sued the defendant Co-operative Society seeking a permanent injunction restraining it from interfering with his alleged five acres on parcel TIMAU SETTLEMENT SCHEME/7693, removal of any caveat, inhibition or caution lodged by the defendant, and a refund of rents collected from his tenants. He testified that he bought four acres in April 1991 and later one more acre from the defendant through its directors, took possession, collected rent from tenants, and was later dispossessed by a group led by Robert Kimathi Marete claiming to have bought the same land from the defendant. The defendant denied the sale, explaining its history as a company incorporated in 1973 by Mau Mau veterans, converted into a Co-operative Society registered in 1980, and asserting that M'Itunga M'Nguchine, the named vendor in the sale agreement, was merely a Management Committee chairman and never an authorized director, and that no resolution to sell was ever passed. The court found that the sale agreement was between M'Itunga M'Nguchine personally and the plaintiff; that the defendant's authorized directors had not been shown to include the vendor; that only a down payment of Ksh. 24,000 was acknowledged with no proof of payment of the balance; that the consideration varied between the consent application (Ksh. 200,000) and the consent itself (Ksh. 80,000); and that no agreement supported the additional acre. Applying Section 107 of the Evidence Act, the court held the plaintiff had failed to discharge the legal burden of proof on a balance of probabilities and dismissed the suit with costs to the defendant.

Key legal issues

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01

Whether the plaintiff proved a sale agreement with the defendant Company entitling him to a permanent injunction and removal of caveats.

Holding

No. The vendor in the sale agreement was M'Itunga M'Nguchine personally, not the defendant; M'Itunga was never shown to be an authorized registered director; there was no Company resolution to sell, no proof of payment of the balance, and inconsistencies in the consideration (Ksh. 200,000 in the application versus Ksh. 80,000 in the consent).

Reasoning

The sale agreement produced as Plaintiff Exhibit No. 1 shows M'Itunga M'Nguchine as vendor and Joseph Mutua Mbuva as purchaser of 4 acres only, with only Ksh. 24,000 down payment acknowledged. Acknowledgement letters were on plain paper without Company letterhead. No official record from the Registrar of Companies showed M'Itunga was a director of the defendant, and no resolution to sell the land was produced. The claim of a later purchase of 1 acre was unsupported by any further agreement.

p. 3
02

Allocation of the burden of proof.

Holding

Under Section 107 of the Evidence Act, the plaintiff as claimant bore the legal burden of establishing his case to the appropriate standard and failed to discharge it.

Reasoning

The court applied Section 107 of the Evidence Act Cap 90 and the Halsbury's Laws of Kenya exposition of the legal burden, which remains constant throughout the trial and vests on the party desiring the court to take action. Having failed to prove the alleged contract with the defendant, the plaintiff necessarily lost.

p. 3

Legal principles established

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  • A company can sue and be sued only through its authorized registered directors; a private transaction by a person not shown to be an authorized director does not bind the company.
  • The party asserting a claim bears the legal burden of proving it to the appropriate standard throughout the trial.

Court orders

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  1. 1.The suit is dismissed with costs to the defendant.

Authorities

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Legislation

  • Evidence ActSection 107(1)
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land parcel TIMAU SETTLEMENT SCHEME/7693

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 Mbuva v Waicakehiri Farmers Co-operative Soceity Ltd (Sued through Chairman Robert Kimathi Marete) [2019] KEELC 2998 (KLR)", Case Analysis (2019). Not stated in the judgment (suit commenced by plaint dated 24th October 2002). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2998/eng@2019-06-03

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