Minnie Wahu Kamande & another v Alldays Limited & 3 others [2019] KEELC 4818 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Limitation - whether the claim for recovery of land was time barred
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.
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.
Whether the transactions contravened Section 38(1) of the Land Act and Section 3(3) of the Law of Contract Act
The question whether formal written agreements existed could not be determined at the interlocutory stage and was left for trial.
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.
Whether a cause of action exists against the 1st Defendant
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.
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.
Whether the suit was prosecuted by an unqualified person
The objection was dismissed for lack of evidence that the pleadings were drawn and signed by the Advocate said to lack a practising certificate.
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.
Whether the self-help groups had capacity to sue
The officials of the self-help groups could properly sue on behalf of the groups, and the objection was dismissed.
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.
Whether a temporary injunction should issue
A temporary injunction was granted to preserve the suit properties pending trial.
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.
Legal principles established
#- 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
#- 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.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.Costs of the Application to be borne by the Respondents
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a pending suit)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.