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ELCPartially AllowedELC Case (Machakos) – Plaintiff's Notice of Motion dated 11th August, 2020 and Defendant's Notice of Motion dated 18th August, 2020· [2020] KEELC 1096 (KLR)

Kaseve Welfare Society v Harp Housing Limited [2020] KEELC 1096 (KLR)

Environment and Land Court
2 October 2020
OAO.A. Angote
5,664 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~23 min to read original · ~4 min brief

The bottom line

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A Kenyan court ruled that an old land allotment letter is not ownership and a society cannot sue in its own name without officials.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Machakos (O.A. Angote, J) determined two competing applications: the Plaintiff's Notice of Motion dated 11th August 2020 seeking injunctive orders restraining the Defendant from encroaching on, alienating or charging L.R No. 337/1002, Athi River, and the Defendant's Notice of Motion dated 18th August 2020 seeking security for costs. The Plaintiff, a purported welfare society, claimed ownership through a letter of allotment dated 6th July 1998 and alleged long occupation. The Defendant relied on a Grant to African Floor (1969) Limited issued in 1993, a transfer to itself in 2005, subsequent sub-division into L.R Nos. 337/5371 and 337/5372, and development of 417 bungalows sold to third parties. Applying the Giella test, the court held that the letter of allotment was a conditional offer never accepted by payment of Kshs. 808,750 within 30 days, and that an allotment letter confers no proprietary interest and cannot defeat a registered title except for fraud or misrepresentation, none of which was pleaded. The Plaintiff also failed to prove occupation. On capacity, the court held that a society registered under the Societies Act cannot sue in its own name and must sue through officials in a representative capacity; the Plaintiff, having sued in its own name with undisclosed officials and an unverifiable registration, was non-suited. The injunction application was dismissed with costs, and the Plaintiff was ordered to deposit Kshs 1,000,000 as security for costs within 30 days.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for a temporary injunction

Holding

No injunction; the Plaintiff's letter of allotment of 6th July 1998 was a conditional offer never accepted by payment of Kshs. 808,750 within 30 days, and the suit property had already been granted to African Floor (1969) Limited in 1993 and transferred to the Defendant

Reasoning

The court applied the Giella test and Mrao definition of a prima facie case. The Plaintiff relied solely on a letter of allotment, which is not title and cannot defeat a registered Grant under Section 23(1) of the Registration of Titles Act absent pleaded fraud. The Plaint enumerated no particulars of fraud. The property had been developed and sold to third parties, showing the Plaintiff's members were never in occupation.

p. 5
02

Whether the Plaintiff, a purported Society, has capacity to maintain the suit

Holding

The Plaintiff is non-suited; having not sued through its officials or in a representative capacity, it cannot maintain the proceedings

Reasoning

The Plaintiff described itself as a Society registered under the Societies Act, but its deponent described himself only as 'a member' and no officials were disclosed. Under Eritrea Orthodox Church and Free Pentecostal Fellowship, unincorporated societies must sue through officials or trustees in a representative capacity under Order 1 rule 8. The Registrar of Societies' letter indicated the Plaintiff did not exist in its records, and its Certificate of Registration was unsigned.

p. 6
03

Whether the Defendant is entitled to security for costs

Holding

Yes; the Plaintiff was ordered to deposit Kshs 1,000,000 as security within 30 days

Reasoning

Under Order 26 Rule 1 of the Civil Procedure Rules the court may order security for costs. The Plaintiff's uncertain legal status, non-disclosure of officials and registered office, absence of known assets, low probability of success, and unpaid costs from the struck-out lower court suit CMCC No. 2196 of 2020 justified the order, since the Defendant would otherwise be unable to recover costs.

Legal principles established

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  • A letter of allotment confers no proprietary interest and cannot defeat a registered title except on grounds of fraud or misrepresentation to which the registered proprietor is a party
  • Societies registered under the Societies Act are unincorporated bodies without capacity to sue or be sued in their own names; they may only sue through trustees or officials in a representative capacity
  • Security for costs may be ordered where a plaintiff's legal status is uncertain and it has no known assets, officials or registered office, making recovery of costs impossible

Court orders

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  1. 1.The Plaintiff's Application dated 11th August, 2020 is dismissed with costs
  2. 2.The Plaintiff to deposit in this court Kshs 1,000,000 being security for costs within 30 days of the date of the Ruling

Authorities

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Legislation

  • Registration of Titles ActSection 23(1)
  • Civil Procedure RulesOrder 26 Rule 1
  • Civil Procedure RulesOrder 1 rule 8
  • Societies ActCap 108

Cases cited (20)

  • Giella vs. Cassman Brown & Co Ltd
    (1973) EA 358
  • Fellowes and Son vs. Fisher
    [1976] 1 QB 122
  • Mrao vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Fessenden vs. Higgs and Hill Ltd
    [1935] All ER 435
  • Francome vs. Mirror Group Newspapers Ltd.
    [1984] 1 WLR 892
  • American Cynamid vs. Ethicon
    [1975] AC 396
  • NWL Limited vs. Woods
    [1979] WLR 1294
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Marcus Mutua Muluvi & Another vs. Philip Tonui & another
    [2012] eKLR
  • Lilian Waithera Gachuhi vs. David Shikuku Mzee
    [2005] eKLR
  • Philma Farm Produce & Supplies & 4 others vs. The Attorney General & 6 others
    (2012) eKLR
  • Dr. Joseph Arap Ngok vs. Justice Moijo Ole Keiwua & 5 Others
    Civil Application No. Nairobi 60 of 1997
  • Eritrea Orthodox Church vs. Wariwax Generation Ltd.
    [2007] eKLR
  • Free Pentecostal Fellowship in Kenya vs. Kenya Commercial Bank
    (1992) eKLR
  • Pancras T. Swai vs. Kenya Breweries Limited
    [2005] eKLR
  • Raw Bank PLC vs. Yusuf Shaa Mohamed Omar & another
    [2020] eKLR
  • Guff Engineering (East Africa) Ltd vs. Amrik Singh Kalgi
  • Sir Lindsay Parkinson & Co. Ltd
    (1973) 2 WLR 632
  • Gill All Weather Bodies Ltd vs. All Weather Motor Bodies Ltd
  • Hall vs. Snowdon Hubbard & Co.
    (1899) 1 QB 593
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property L.R No. 337/1002, Athi River

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (9)

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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, "Kaseve Welfare Society v Harp Housing Limited [2020] KEELC 1096 (KLR)", Case Analysis (2020). ELC Case (Machakos) – Plaintiff's Notice of Motion dated 11th August, 2020 and Defendant's Notice of Motion dated 18th August, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1096/eng@2020-10-02

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