Grandscope Ventures Limited v ACK. ST. Thomas Church, Kilifi [2021] KEELC 2111 (KLR)
The bottom line
#A landowner who sued a Kilifi church over an old graveyard lost because he never inspected or surveyed the land before buying it.
What this practically means
#Executive summary
#Key legal issues
#Whether the Defendant encroached on and trespassed on the Plaintiff's land
The claim of trespass failed; the survey evidence showed an old graveyard, and there was no evidence of fresh burials attributable to the Defendant after the Plaintiff's purchase in April 2011.
The earliest survey report (June 2016 by Masjac General Contractors) described the site as an old grave site that should have been enclosed in parcel 5054/215. The District Surveyor's letter of 30th January 2017 confirmed an encroachment of 0.0372 Ha but described an old graveyard. The Plaintiff admitted it never surveyed the land before purchase, and PW1 conceded graves were visible across the fence when he viewed the land in April 2011. No witness identified any bodies buried after 2011.
Whether the court could compel the Defendant to purchase the suit property for Ksh. 15,000,000/=
No; a mandatory injunction cannot compel a party to enter a contract of sale against its will.
The Plaintiff had offered the property to the Defendant for Ksh. 15 million and the Defendant declined. The court held that a contract of sale requires offer and acceptance by willing parties and no law permits a court to force a party to contract.
Whether the Defendant, sued as ACK St. Thomas Church, Kilifi, had capacity to be sued
The Defendant is a branch of a religious society registered under the Societies Act and has no capacity to be sued in its own name; the suit was bad in law on this ground.
The Plaintiff's own Plaint described the Defendant as a church registered under the Societies Act. Relying on Living Waters Church International v City Council of Nairobi, the court held registered societies lack legal personality and must be sued through their officials or trustees per their constitutions. Suing the Kilifi branch directly was therefore misconceived.
Legal principles established
#- Registered societies under the Societies Act are not legal personalities capable of being sued; they can only be sued through their officials or trustees as per their constitutions.
- A contract of sale is premised on the willingness of the parties and a court cannot compel a party to enter into a contract to purchase land.
Court orders
#- 1.The suit is dismissed with costs to the Defendant
- Jurisdiction invoked
- Environment and Land Court jurisdiction over disputes relating to land (ELC Case No. 135 of 2017, Malindi)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Grandscope Ventures Limited v ACK. ST. Thomas Church, Kilifi [2021] KEELC 2111 (KLR)", Case Analysis (2021). ELC Case No. 135 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2111/eng@2021-08-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.