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ELCAllowedELC Case No. 168 of 2013· [2021] KEELC 462 (KLR)

Order of St Augustine Kenya Registered Trustees v Alfred Otieno & 5 others [2021] KEELC 462 (KLR)

Environment and Land Court
9 December 2021
LKL. Komingoi
2,372 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Nairobi court confirmed the Catholic trustees own the Ruaraka school land, and ruled that fraud claims fail without solid evidence.

What this practically means

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Executive summary

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The Order of St. Augustine Kenya Registered Trustees, a Catholic body, sued six officials of Support African Child Network, a community-based organisation, seeking a declaration of ownership of 8 plots subdivided from L.R 31/17, Ruaraka, on which Blessed Teresa of Calcutta High School stands, together with mandatory and permanent injunctions, an account and refund of monies collected for the school, and police-supervised vacation of the premises. The Plaintiff's case was that the Defendants assigned the plots by a Deed of Assignment dated 12th April 2009 for Kshs.800,000/- and handed over the school, but later reneged, attempted to re-register the school and opened new accounts. The Defendants denied the claims in their defence and counterclaim, alleging they only sought assistance with registration and that the Deed was procured by misrepresentation; they counterclaimed for a declaration that the school belonged to them. Their counsel obtained an adjournment on 1st February 2021 but did not appear on 23rd June 2021, and the matter proceeded ex parte. PW1, Reverend James Wambugu, gave uncontroverted evidence of the purchase, the Deed of Assignment, the 2010 handover and the Plaintiff's continued sponsorship and payment of salaries. The court framed three issues: ownership, entitlement to reliefs, and costs. Applying the principle in Vijay Morjoria that fraud must be specifically pleaded and distinctly proved, the court found the Defendants' fraud plea unproven and the minutes of December 2012 confirmed the handover. Judgment was entered for the Plaintiff on all prayers, with costs and interest.

Key legal issues

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01

Ownership of the suit property

Holding

The Plaintiff proved ownership of the 8 plots assigned under the Deed of Assignment dated 12th April 2009.

Reasoning

The Deed of Assignment was duly executed by all parties and produced as an exhibit. The Plaintiff paid Kshs.800,000/-. The Defendants' evidence was closed without testifying after they failed to attend the hearing, and their averments were not controverted. The court found the uncontroverted evidence proved ownership.

p. 3
02

Alleged fraud in the Deed of Assignment

Holding

The Defendants' plea of fraud failed for want of proof.

Reasoning

The Defendants pleaded that the Deed of Assignment was procured by misrepresentation and non-disclosure, but tendered no evidence. Fraud must be specifically pleaded and distinctly proved and cannot be inferred from facts. Having adduced no proof, the defence on fraud collapsed.

p. 3
03

Handover of the school

Holding

The Defendants acknowledged in minutes of meetings that they had handed over the school to the Plaintiff.

Reasoning

Minutes of meetings of 2nd and 4th December 2012 produced as exhibits showed the Defendants acknowledged handing over the school. Since 2010 the school had been wholly managed and sponsored by the Plaintiff, which paid staff salaries, entitling it to the reliefs on management of the school and its accounts.

p. 3

Legal principles established

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  • Fraud must be specifically pleaded with particulars on the face of the pleading and must be distinctly proved; it cannot be left to inference.

Court orders

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  1. 1.Declaration that the Plaintiff is the sole legal and lawful owner and/or proprietor of the 8 plots being subdivisions of title No. L.R 31/17, Ruaraka, Nairobi County
  2. 2.Mandatory injunction compelling the Defendants to issue the Plaintiff with the letters of allotment and/or duly executed transfer forms of the plots
  3. 3.Permanent injunction restraining the Defendants, their assigns, agents, successors and/or personal representatives from interfering with, entering, taking possession of or constructing on the 8 plots
  4. 4.Permanent injunction restraining the Defendants from interfering with the management of Blessed Teresa of Calcutta High School and its school accounts
  5. 5.Order compelling the Defendants to give an account of all monies collected for and on behalf of the school and refund any monies misappropriated
  6. 6.Order directed to the OCS Ruaraka Police Station to supervise the vacation of the Defendants from the suit premises at the Defendants' own costs
  7. 7.Costs of the suit to the Plaintiff plus interest at court rates

Authorities

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Cases cited (5)

  • Motex Knitwear Mills Limited vs Gopitex Knitwear Mills Limited
    [2009] eKLR
  • Kenya Power & Lighting Company Ltd v Sheriff Habib
    [2018] eKLR
  • John Wakaba Njau & 11 others v Markroscar Kenya Limited
    [2020] eKLR
  • Eunice Grace Njambi Kamau and Another vs The Attorney General and 5 Others
    Civil Suit No 976 of 2012
  • Vijay Morjoria vs Nansingh Madhu Singh Darbar & Another
    [2000] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to land in Nairobi County

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, "Order of St Augustine Kenya Registered Trustees v Alfred Otieno & 5 others [2021] KEELC 462 (KLR)", Case Analysis (2021). ELC Case No. 168 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/462/eng@2021-12-09

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