Kitale Chepkorok Farm Limited v Peter Nasasa & 4 others [2021] KEELC 299 (KLR)
The bottom line
#A Kenyan court confirmed a company still owns its land despite members dying, and buyers outside the original 126 members cannot claim the plots.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff company still exists
The Plaintiff exists; the Defendants produced no evidence from the Registrar of Companies to show otherwise
PW1 produced the Certificate of Incorporation and testified the company still exists. DW1 and DW2 merely asserted that the company no longer existed because original members had died, producing no evidence from the Registrar of Companies. Applying Salomon v Salomon, the court held that a company is separate from its members and continues to exist until wound up, irrespective of the fate of its shareholders.
Whether the Defendants are among the intended beneficiaries of the subdivision
The Defendants are not among the 126 members to whom the land should be transferred; they were mere purchasers from original members
The Plaintiff proved it was the original proprietor of LR 5777/3, obtained the 1994 Land Control Board consent for subdivision into 126 portions for its 126 members, and that the conversion of the title did not divest its ownership. The Defendants' own evidence showed they purchased their portions from original members and were not original members of the company, so they cannot directly benefit from the lawful subdivision into 126 plots.
Whether the purported subdivision into 856 plots was valid
The documents supporting the 856-plot subdivision were incorrect and invalid; the 1994 consent for 126 plots is the valid consent
The court found the alleged second subdivision came after approval of the 126-plot subdivision. The Defendants relied on letters from survey and planning officials and a consent dated 28/07/2004, but the court held it was unexplainable how a second subdivision could occur while a valid consent for 126 plots subsisted, and that only the registered proprietor could properly seek consent to transfer; the purported 856-plot consent was therefore improper and invalid.
Whether the Defendants were the objectors who caused the deferment of the 08/04/2015 Land Control Board applications
On a balance of probabilities, the Defendants and/or their agents participated in the objections, though no direct documentary proof was produced
Although the Plaintiff's minutes showed the applications were deferred, there was no list of attendees or written objections identifying the objectors. However, since the Defendants persistently advocated for 856 portions and there was evidence of tension over the subdivision numbers, the court inferred on a balance of probabilities that they or their agents were participants in the objection process.
Legal principles established
#- A company, once incorporated, is a separate legal entity that continues to exist irrespective of the death or departure of its members unless it is wound up
- Surrender of a title for conversion from one registration regime to another does not vest the land in the Government; ownership remains with the owner, and the process described by the Defendants would have amounted to compulsory acquisition, which did not occur
- Where a valid Land Control Board consent exists for subdivision into 126 plots, a subsequent purported consent for subdivision into 856 plots is invalid; both owner and intended transferee must jointly apply for consents, and anything short of the proper application process is a nullity
- The burden of proof lies on the party who asserts a fact
Court orders
#- 1.A declaration be and is hereby made that the 1st, 2nd and 3rd Defendants are not among the 126 people and to whom the land compromised in parcel no. L.R. No. Saboti/Sikhendu Block 5/Chepkorok should be transferred to.
- 2.The Plaintiff is awarded costs of the suit as against the 1st, 2nd and 3rd Defendants together with interest thereon.
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a dispute relating to title and subdivision of land (no specific constitutional provision cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kitale Chepkorok Farm Limited v Peter Nasasa & 4 others [2021] KEELC 299 (KLR)", Case Analysis (2021). ELC Case of 2015 (Kitale) — Plaint filed 13/07/2015, Amended Plaint filed 02/10/2019 (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/299/eng@2021-12-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.