Board of Trustees of Maendeleo ya Wanawake Organisation v Florence Achisa Shivachi & 4 others; Gulf Energy Limited (Interested Party) [2020] KEELC 304 (KLR)
The bottom line
#A Kenyan court cancelled a land sale because the sellers falsely claimed to be trustees — the buyer lost the property despite being a registered owner.
What this practically means
#Executive summary
#Key legal issues
#Authority and capacity of the 1st to 4th defendants to sell the suit property
They were not registered trustees at the material time and had no authority or capacity to sell; the sale agreement was a nullity
The MYWO Constitution vests power to sell immovable property in the Board of Trustees, with approval of the National Executive Council. The list of trustees (PEx2) did not include any of the 1st to 4th defendants, who admitted they were only elected officials. They signed the sale agreement holding themselves out as registered trustees, which was fraudulent. They also failed to produce the person who allegedly gave verbal authority from headquarters or account for the sale proceeds.
Indefeasibility of the 5th defendant's title under the Land Registration Act
Although title is prima facie indefeasible under sections 24(a) and 26(1) of the Land Registration Act, it can be challenged on the ground of fraud; the root of the 5th defendant's title was fraudulent
The court applied sections 24(a) and 26(1) of the Land Registration Act and the Elijah Makeri Nyangw'ra case, holding that a title in the hands of an innocent third party can be impugned if it was obtained illegally, unprocedurally or through a corrupt scheme. The 5th defendant derived title from a transaction that was itself a nullity, so his title could not stand. The interested party was left to pursue its recourse against the 5th defendant.
Plaintiff's locus standi and failure to produce certificate of incorporation or resolution
The failure of the plaintiff to produce a certificate of incorporation or a resolution to sue did not defeat the claim, given judicial notice of MYWO's status and Article 159(2)(d) of the Constitution
The defendants submitted that the plaintiff, being a body corporate, failed to produce a certificate of incorporation, certified annual returns or a resolution to institute the suit. The court noted that the fact the 1st to 4th defendants were not trustees was undisputed, took judicial notice that MYWO was registered in 1952 with a Board of Trustees, and invoked Article 159(2)(d) that justice be administered without undue regard to procedural technicalities.
Legal principles established
#- Only duly registered trustees with authority may dispose of an organization's immovable property; a sale by persons holding themselves out as trustees without authority is a nullity
- A title may be impugned where it was obtained fraudulently or where the transaction was entered into by persons without capacity
Court orders
#- 1.A declaration that the purported land sale agreement entered between the 1st, 2nd, 3rd and 4th defendants and the 5th defendant on 7th September, 2013 in respect of the suit property No. L.R. Kakamega Municipality/Block 1/557 was fraudulent and therefore illegal
- 2.Cancellation of the 5th defendant as the registered proprietor of the suit property and restitution of the suit property to the Maendeleo Ya Wanawake Organization (MYWO)
- 3.Costs of the suit to the plaintiff
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under Article 162(2)(b) of the Constitution (land and environment disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Board of Trustees of Maendeleo ya Wanawake Organisation v Florence Achisa Shivachi & 4 others; Gulf Energy Limited (Interested Party) [2020] KEELC 304 (KLR)", Case Analysis (2020). ELC Case No. 215 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/304/eng@2020-12-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.