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ELCDismissedELC Case of 2016 (filed 10th June 2016)· [2021] KEELC 131 (KLR)

Thomas Opiyo & 123 others v Teleposta Pension Scheme Registerd Trustees [2021] KEELC 131 (KLR)

Environment and Land Court
14 December 2021
SOS. Okong'o
4,305 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed 124 former tenants' bid to buy their occupied plots, ruling that informal interest in property is no substitute for a written agreement.

What this practically means

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Executive summary

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The plaintiffs, former employees of Telkom Kenya Limited and the Postal Corporation of Kenya, sued the defendant trust (established in 1999 under Legal Notice No. 154 to discharge pension liabilities of the defunct KPTC) claiming they were entitled to first priority to purchase 76 plots on Nairobi/Block 55 formerly occupied by them. They sought a declaration of priority, a permanent injunction against interference with their occupation, an order compelling sale and transfer to them, plus costs. The defendant denied any right of priority, stating the houses had been condemned as unfit for habitation in 2002, that it never created any tenancy or priority right, and that it had sold most of the plots to third parties. It also raised authority of Thomas Opiyo to sue for the unnamed plaintiffs and res judicata, but the court determined the matter on the merits. Thomas Opiyo admitted in cross-examination that he was never an employee of the defendant, that the defendant never allocated the plaintiffs the properties, and that he had no documentary evidence of any priority right. The court found no agreement, undertaking or legitimate expectation supporting the claim: the correspondence between the parties never amounted to an offer and acceptance, and the plaintiffs knew from 2002 that the houses were condemned and not for sale. The suit was dismissed with costs to the defendant under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the plaintiffs were entitled to first priority to purchase the suit properties

Holding

The plaintiffs failed to establish any right of first priority to purchase; no agreement, undertaking or legitimate expectation supported the claim.

Reasoning

The plaintiffs were allocated the houses by their former employers (KPTC, Postal Corporation of Kenya or Telkom Kenya Limited), not by the defendant, and their occupation ended when the houses were condemned in 2002. No letter of allocation, termination letter or other document contained an undertaking to accord first priority. Correspondence exchanged with the defendant never ripened into an offer and acceptance. Any expectation of priority was not legitimate since the plaintiffs knew by 2002 the houses were condemned and not for sale.

p. 4
02

Whether the plaintiffs are entitled to the reliefs sought in the plaint

Holding

The reliefs fall with the failure to prove the priority right; the suit was dismissed in its entirety.

Reasoning

The plaintiffs' whole case rested on the asserted priority right. Having found no such right established on the evidence, the court held the plaintiffs were entitled to none of the declaratory, injunctive or specific-order reliefs sought in the plaint dated 8th June 2016.

p. 4
03

Costs of the suit

Holding

Costs were awarded to the successful defendant under section 27 of the Civil Procedure Act.

Reasoning

Costs follow the event and are at the court's discretion. No reason was advanced to deny the successful defendant its costs.

p. 4

Legal principles established

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  • A claimant asserting a right of first priority to purchase property bears the burden of proving the right, including exhibiting any agreement or undertaking creating it.
  • Mere correspondence expressing interest in purchasing property does not constitute an offer and acceptance capable of founding an agreement for sale.
  • Legitimate expectation requires evidence that the counterparty created the expectation.

Court orders

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  1. 1.The plaintiffs' suit is dismissed
  2. 2.The defendant shall have the costs of the suit

Authorities

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Legislation

  • Evidence ActSection 107
  • Civil Procedure ActSection 27
  • Legal Notice No. 154 published in Kenya Gazette Supplement No. 59 of 5th November, 1999Vesting of suit properties on the defendant
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit properties

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, "Thomas Opiyo & 123 others v Teleposta Pension Scheme Registerd Trustees [2021] KEELC 131 (KLR)", Case Analysis (2021). ELC Case of 2016 (filed 10th June 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/131/eng@2021-12-14

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