Kogo Flats Ltd v Sammy Cherunya & another [2019] KEELC 3021 (KLR)
The bottom line
#A company that sues without a board resolution loses automatically, and even an innocent Kenyan land buyer can lose a title obtained unprocedurally.
What this practically means
#Executive summary
#Key legal issues
#Competency of suit filed without a board resolution
The suit was incompetent: no board resolution authorised the filing of the suit or the appointment of the advocate, and evidence had closed leaving no room to ratify
PW1 described himself as a director and produced a certificate of incorporation but no board resolution authorising the suit or appointing counsel. Relying on Affordable Homes Africa Ltd and Assia Pharmaceuticals, the court held that litigation for a company requires a board resolution; proceedings without authority may be ratified, but the case had been fully heard with no time to regularise. Article 159(2)(d) is no panacea for such irregularities.
Whether the plaintiff's title was acquired procedurally
The plaintiff's title was not procured procedurally and was therefore impeachable notwithstanding registration
The plaintiff bought from Philip Koech for Kshs 2,000,000 but produced no documents showing how the vendor acquired the land. The defendants held the original 617-acre head title (L/R No. 8148) never surrendered, and government correspondence showed compulsory acquisition of 400 acres and subdivision, with the plaintiff's titles anomalously falling within the defendants' Block 15/2365. Due diligence would have exposed the anomaly; under section 26(1)(b) even an innocent holder's title falls if acquired illegally, unprocedurally or through a corrupt scheme.
Whether the defendants proved their counterclaim
The counterclaim succeeded; the land belonged to the late Cherunya and the register should be rectified in favour of the original proprietor
The defendants produced the unsurrendered original title, succession letters of administration, and correspondence with the Commissioner of Lands on compulsory acquisition and subdivision. Government survey witnesses confirmed the plaintiff's titles fell within Block 15/2365 which was never acquired by the government. Fraud was specifically pleaded and proved by documentary evidence, satisfying section 80(1) of the Land Registration Act for rectification.
Legal principles established
#- Lack of a board resolution authorising institution of a company suit is not a mere procedural technicality curable under Article 159(2)(d); without such a resolution the company is not before the court
- A person alleging that a title was obtained illegally, unprocedurally or through fraud must specifically plead and prove it; and under section 26(1)(b) the title of even an innocent holder is impeachable if the title was obtained illegally, unprocedurally or through a corrupt scheme
- No person can transfer a registered proprietor's interest in land without the knowledge, participation or consent of the registered proprietor; a transfer by one with no title to pass is a nullity
Court orders
#- 1.The plaintiff's case is dismissed with costs
- 2.An order for the cancellation of the plaintiff's titles on the suit land and rectification of the register to read the original proprietor of ELDORET MUNICIPALITY BLOCK 15/9
- 3.Costs of the counterclaim to the defendants
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over the suit property Eldoret Municipality/Block 15/1857 (first-instance suit; no constitutional or statutory provision expressly cited)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kogo Flats Ltd v Sammy Cherunya & another [2019] KEELC 3021 (KLR)", Case Analysis (2019). Eldoret ELC Suit (plaint dated 12th February 2014, amended 9th June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3021/eng@2019-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.