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ELCDismissedELC No. 946 of 2015· [2019] KEELC 4583 (KLR)

Titus Mithamo Macharia v Mshamba Housing Co-Operative Society [2019] KEELC 4583 (KLR)

Environment and Land Court
24 January 2019
EOE. O. Obaga
1,194 words in judgment
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The bottom line

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A Nairobi court dismissed a member's claim for a Ruai plot because he helped make the relocation decision and could not change his claim mid-trial.

What this practically means

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Executive summary

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The plaintiff, a member of the defendant land-buying co-operative society, was allocated plot No.060 (40' by 80') on LR No.9363/102 at Ruai. When the Nairobi City Council imposed stringent conditions on the subdivision scheme, some plots fell within the expanded riparian reserve and roads. Affected members, including the plaintiff, were allocated alternative plots at Donyo Sabuk in Machakos County; the plaintiff received plot No.090. He sued seeking an order compelling the defendant to issue him land equivalent to his Ruai plot or its monetary value, later claiming the difference in value between the two plots (Kshs.1,600,000 against Ksh.200,000 per valuations). The defendant denied the claim, contending the plaintiff attended the meeting resolving on alternative plots and sat on the supervisory/management committee. The court framed three issues: whether the relocation decision was made in bad faith, whether the plaintiff was party to it, and whether he was entitled to the reliefs sought. It held the decision was made in good faith following the Council's conditions and in the members' interest; the plaintiff, as a management committee member who attended the relevant meetings including the special general meeting of 25th July 2015, participated in the decision. The court further held that a party is bound by his pleadings and cannot depart from them at trial, and that there was no basis for a Ruai plot or monetary compensation while retaining the Donyo Sabuk plot. The suit was dismissed with costs to the defendant.

Key legal issues

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01

Whether the decision to relocate members to Donyo Sabuk was made in bad faith

Holding

The decision was made in good faith following the City Council's stringent subdivision conditions, and was in the interest of the members

Reasoning

The initial subdivision accommodated all members, but City Council conditions rendered some plots non-existent and others had to be sold to clear society debts. Members resolved to buy land at Donyo Sabuk (LR Donyo Sabuk/Komarock Block 1/43) for affected members, with allocation on 23rd March 2013. Over 70 members were relocated. The court found the decision was made in good faith and in members' interest.

p. 2
02

Whether the plaintiff participated in the relocation decision

Holding

The plaintiff, being a member of the management/supervisory committee and attending relevant meetings, was part of the decision-making process and could not allege bad faith

Reasoning

Evidence showed the plaintiff attended meetings including the special general meeting of 25th July 2015 and sat on the management committee. The 14 remaining Ruai plots were created for re-sale under the management's guidance, of which the plaintiff was a member. His presence was confirmed in documents produced by the defendant, estopping him from challenging the decision as an outsider.

p. 1
03

Whether the plaintiff was entitled to an equivalent Ruai plot or monetary compensation

Holding

The suit was misconceived; the plaintiff could not retain the Donyo Sabuk plot while claiming a Ruai plot or compensation, and could not depart from his pleadings

Reasoning

The plaint claimed refusal to process title to plot No.060 at Ruai, with relocation mentioned only in passing to show bad faith. At hearing the plaintiff sought the value difference between plots, producing valuation reports. The court held a party is bound by pleadings, and since the relocation decision was made in good faith, there was no basis for a Ruai plot or monetary compensation while retaining the Donyo Sabuk land.

p. 2

Legal principles established

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  • A party is bound by his pleadings and cannot depart from them or seek relief at trial that was not pleaded

Court orders

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  1. 1.The plaintiff's suit is dismissed with costs to the defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Titus Mithamo Macharia v Mshamba Housing Co-Operative Society [2019] KEELC 4583 (KLR)", Case Analysis (2019). ELC No. 946 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4583/eng@2019-01-24

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