Rift Valley Machinery Services Limited v Agro Complex (K) Limited & 11 others; Agro Complex Kenya Limited & 2 others (Third Parties) [2020] KEELC 3915 (KLR)

The Registrar of Companies registered both companies; the directive of 2008 to change the 1st Defendant's name came ten years after registration. The court found no evidence the 1st Third Party traded under its name, while the 1st Defendant wrote letters and obtained a tax PIN. Fraud in the incorporation was not proved to the court's satisfaction.

The Plaintiff's and 1st Defendant's titles were both processed from the same deed plan 207399 - the former from the original, the latter from a certified copy. The 6th Defendant's title arose from amalgamation of parcels created out of the same land, and the parties' physical confrontation on the land and the 2014 orders confirmed identity.

The court preferred the evidence of Mr. Silas Mburugu, the investigating officer, that Mr. Mingi was most probably the allottee and pursued the title relentlessly. The 1st Third Party delayed eight years in accepting the allotment, gave no proof of consideration, land rent or rates, and the Plaintiff was aware of Mingi's claim before purchasing. The land, allocated in 1990, was not available for alienation in 2000 to the 7th–12th Defendants.

The missing lands records and the double registration were attributable to the negligence and laxity of the lands office and the Registrar of Companies, which registered two deceptively similar companies. Since the 4th and 5th Defendants were themselves at fault, they could not shift liability to the Third Parties.

Section 34 permits evidence given by a deceased witness in a judicial proceeding to be admitted where the subsequent proceeding is between the same parties and there was opportunity to cross-examine. The affidavit was sworn in these very proceedings, the Plaintiff could cross-examine, and it touched only the Plaintiff without prejudicing the 6th Defendant.