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ELCPartially AllowedNotice of Motion dated 15th November, 2017 (Mavoko ELC suit)· [2019] KEELC 4818 (KLR)

Minnie Wahu Kamande & another v Alldays Limited & 3 others [2019] KEELC 4818 (KLR)

Environment and Land Court
31 January 2019
2,649 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Machakos court blocked the transfer of disputed Mavoko plots, ruling that self-help group officials can sue and a 12-year clock had not expired.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (O.A. Angote, J) on the Plaintiffs' Notice of Motion dated 15th November 2017 seeking a temporary injunction over seventeen Mavoko Town Block 2 parcels, preservation of registration documents by the County Land Registrar, Machakos, and deposit of title deeds in court. The Plaintiffs claimed they purchased the parcels from the late Anthony Anthanus Ngotho, who authorised the 1st Plaintiff to collect purchase price, and that after his death on 9th January 2007 the family and administrators continued receiving payments, with a 17th August 2009 letter from the 1st Defendant's Director undertaking to transfer title deeds to fully paid clients upon confirmation of the Grant. The Defendants opposed, arguing the suit was statute barred, contravened Section 3(3) of the Law of Contract Act and Section 38(1) of the Land Act, disclosed no cause of action against the 1st Defendant, was prosecuted by an unqualified advocate, and was brought by groups lacking capacity to sue. The court framed four preliminary issues and resolved all against the Defendants: the claim for recovery of land was within the twelve-year limitation period since payments continued to 2010; the formal-agreement issue was a matter for trial; the 1st Defendant was a necessary party; and the officials of the self-help groups could properly sue. Finding the Plaintiffs would suffer irreparable damage if the properties, which the Defendants were in the process of transferring, were not preserved, the court granted the temporary injunction and the registrar-preservation order, and awarded the costs of the application to the Plaintiffs. The application was allowed on those terms; the prayer for deposit of title deeds in court was not included in the orders granted.

Key legal issues

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01

Limitation - whether the claim for recovery of land was time barred

Holding

The suit was not time barred because the limitation period of twelve years for recovery of land had not run from the last payments made.

Reasoning

The claim before the court is one for recovery of land, which carries a twelve-year limitation period. Since the Plaintiffs purportedly continued paying the balance of the purchase price up to 2010, and the suit was filed in 2017, twelve years had not lapsed. The Defendants' plea that the suit was statute barred under Section 4 of the Limitation of Actions Act therefore failed.

p. 3
02

Whether the transactions contravened Section 38(1) of the Land Act and Section 3(3) of the Law of Contract Act

Holding

The question whether formal written agreements existed could not be determined at the interlocutory stage and was left for trial.

Reasoning

The Plaintiffs asserted that they forwarded the sale agreements to the Defendants upon request. Given that factual dispute, the court declined to find at the interlocutory stage that the transactions were contra-statute, holding that the issue of formal written agreements pursuant to Section 38 of the Land Act and Section 3(3) of the Law of Contract Act can only be established at trial.

p. 3
03

Whether a cause of action exists against the 1st Defendant

Holding

The 1st Defendant was a necessary party because its Director authored the letter of 17th August 2009 undertaking to transfer title deeds to fully paid clients.

Reasoning

The Plaintiffs exhibited cheques drawn in favour of the 1st Defendant and two letters authored by its Directors, including the 17th August 2009 letter in which the Estate undertook to transfer title deeds upon confirmation of the Grant. Given that involvement, the 1st Defendant was a necessary party whose role would be clearer after trial.

p. 3
04

Whether the suit was prosecuted by an unqualified person

Holding

The objection was dismissed for lack of evidence that the pleadings were drawn and signed by the Advocate said to lack a practising certificate.

Reasoning

The Law Society of Kenya letter indicated that Wachira Martin Maina Advocate last held a valid practising certificate in 2012, but there was no evidence that the pleadings were drawn and signed by him. Further, the Society had asked the Defendants' advocate to furnish evidence to enable disciplinary proceedings, which was never taken up. The objection was therefore dismissed.

p. 3
05

Whether the self-help groups had capacity to sue

Holding

The officials of the self-help groups could properly sue on behalf of the groups, and the objection was dismissed.

Reasoning

While unincorporated societies cannot sue in their own names, their officials or trustees may sue on their behalf in accordance with their constitution. The Plaintiffs described themselves as officials of Kiamura Self Help Group, and nine persons signed an authority to file suit. The claim was properly brought by nine Plaintiffs together with the group's members, so the objection was dismissed.

p. 3
06

Whether a temporary injunction should issue

Holding

A temporary injunction was granted to preserve the suit properties pending trial.

Reasoning

Given the uncertainty over the purchase price and whether it was fully paid, coupled with the 1st Defendant's admission of willingness to transfer titles to those providing requisite documents, and the Defendants' ongoing process of transferring the properties to beneficiaries or third parties, the court found the Plaintiffs would suffer irreparable damage absent injunctive relief and allowed the application.

p. 4

Legal principles established

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  • Unincorporated self-help groups cannot sue or be sued in their own names, but their officials or trustees may sue or defend on their behalf in accordance with their constitution.

Court orders

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  1. 1.Temporary injunction restraining the Defendants/Respondents, their agents, kin, servants, and/or employees from evicting the Applicants, disposing off, re-allocating, alienating, charging, transferring or in any other manner dealing with the suit properties (Mavoko Town Block 2 parcels listed) or interfering with the Applicants' quiet possession pending the hearing and determination of the suit
  2. 2.Order directing the County Land Registrar, Machakos to secure under lock and key the files, binders, green cards and any other registration documents relating to the suit parcels and prohibiting registration of any further dealings over these parcels until further orders of the Court
  3. 3.Costs of the Application to be borne by the Respondents

Authorities

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Legislation

  • Limitation of Actions ActSection 4
  • Law of Contract ActSection 3(3)
  • Land ActSection 38(1)
  • Trustees ActSection 24

Cases cited (1)

  • African Orthodox Church of Kenya vs. Rev. Charles Omuroka & Lagos Ministry of Orthodox Renewal
    (2014) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a pending suit)

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, "Minnie Wahu Kamande & another v Alldays Limited & 3 others [2019] KEELC 4818 (KLR)", Case Analysis (2019). Notice of Motion dated 15th November, 2017 (Mavoko ELC suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4818/eng@2019-01-31

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