Falcon Properties Limited v David Songok Langat [2019] KEELC 3089 (KLR)
The bottom line
#Kenya's High Court threw out a land settlement made by lawyers who were never instructed by the company that actually owned the disputed property.
What this practically means
#Executive summary
#Key legal issues
#Whether Omondi & Company Advocates had authority to come on record and enter the consent of 14.5.2009
The court found the firm had no instructions from Jaswant Singh Rai, the director who swore the verifying affidavit and initiated the suit, and that the director who instructed it had no capacity; the consent and resultant order were therefore null, void and illegal and were set aside.
Jaswant Singh Rai swore that the plaintiff never instructed Omondi & Company Advocates and did not know the firm. A letter from Omondi & Company Advocates showed it acted for a different company of a similar name registered in 2008, whose directors were Samwel Kipkemboi Maina and Titus Kiprotich Maina. The court found serious irregularities bordering on fraud: the second company was incorporated after the suit property had been allocated to the plaintiff, so it could not have validly transferred it. The court concluded that a director who did not initiate the suit could not validly instruct or compromise it.
Whether the consent judgment should be set aside notwithstanding the respondent's contention that no acceptable reason was advanced
The consent and the resultant order of 21.5.2009 were set aside because they were founded on a consent that was null, void and illegal, lacking proper authority from the plaintiff.
The respondent argued the suit was properly finalized by consent and that Nyairo & Company Advocates were no longer on record, rendering the application incompetent. The court nonetheless found that the instructions to Omondi & Company Advocates came from a person without capacity, and that a consent founded on such instruction was a nullity. The objection based on the advocate no longer being on record did not save the consent order.
The irregular and possibly fraudulent double registration of companies under the name Falcon Properties Limited
The court found very serious irregularities bordering on fraud: two companies with different directors but claiming the same property, the second registered in 2008 after the property had been allocated to the first company registered in 1988.
The plaintiff was incorporated on 9th February 1988 (Certificate No. C36564) and its 2007 annual return showed directors Jaswant Singh Rai, Iqbal Singh Rai and Sarbjit Singh Rai. The Registrar of Companies had inadvertently allocated the same name to later companies and warned them to change their names under Section 20 of the Companies Act (Cap 486). The court held it was impossible for the property to have been allocated to the second company before its incorporation, undermining the transfer to the defendant.
Legal principles established
#- A director who did not institute a suit has no capacity to instruct new advocates to come on record or to compromise the suit on behalf of the plaintiff company; a consent entered without such authority is null and void and will be set aside.
Court orders
#- 1.The consent dated 14.5.2009 between Omondi & Company Advocates and Annasi Momanyi & Company Advocates filed on 21.5.2009, and the resultant court order issued on 21.5.2009, is set aside
- 2.Costs of the application to be paid by the respondent
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act and Order XLIX, Rule 5 of the Civil Procedure Rules (as they then were), invoked by the applicant for the court's inherent power to grant the orders sought
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#Cite this brief
Caselaw, "Falcon Properties Limited v David Songok Langat [2019] KEELC 3089 (KLR)", Case Analysis (2019). Not stated in the judgment (Eldoret suit regarding Eldoret Municipality/Block 8/338). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3089/eng@2019-05-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.