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ELCPartially AllowedNot stated in the judgment (plaint dated 30th January 2014)· [2021] KEELC 3921 (KLR)

Estate of Jim Kiptum Choge (Suing through the Administrators) Eva Chepkurui Cherogony & 3 others v Sarah Makungu [2021] KEELC 3921 (KLR)

Environment and Land Court
3 March 2021
MOM. A. Odeny
6,043 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ordered a land buyer evicted in Eldoret because her seller had no title; buying without an official search and signed agreements left her unprotected.

What this practically means

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Executive summary

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By a plaint dated 30th January 2014 the plaintiffs sought eviction of the defendant from Eldoret Municipality Block 15/2224, a permanent injunction, demolition of structures and general damages for trespass. The land is registered as to 3/4 in Solongo Enterprises Limited and 1/4 in Ezekiel Barngetuny (since deceased). The defendant claimed she bought 1/8 acre from Aggrey Azelwa (DW2) for Kshs 350,000/-, who in turn alleged he bought the whole parcel from the late Jim Choge through Rehema Self Help Group as authorised agent. The defendant raised locus standi, alleged a duplicate title and non-joinder. The court framed four issues: privity of contract and agency, authority of Jim Choge, bona fide purchaser status, and entitlement to relief. On locus standi the court held, following United Assurance Co Ltd v Attorney General and Fubeco China Fushun, that no board resolution is required to authorize a suit, and found the objection ironic since the defendant's own chain of title depended on the alleged unauthorised agents. On the merits, DW2 admitted there was no written sale agreement with the registered owners, and the letters of authority were not signed or sealed by them; there was thus no privity of contract and no agency. Applying Katende v Haridar, the defendant failed the bona fide purchaser test: she made no search, her agreement was not signed by the owners' representatives, and the purchase price figures were irreconcilable. Under Sections 24 and 25 of the Land Registration Act the registered owner's title is indefeasible. The suit was allowed: vacant possession within 45 days failing which eviction would issue, a permanent injunction, demolition of structures within 45 days at the defendant's cost, and costs to the defendant. General damages for trespass were not addressed in the final orders.

Key legal issues

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01

Locus standi of the plaintiffs to sue for the company

Holding

The plaintiffs had capacity to sue; from the plaint Solongo Enterprises Ltd is one of the plaintiffs and a company resolution authorized the filing of the suit, and in any event no formal resolution is required.

Reasoning

The defendant argued the estate of Jim Choge had no locus standi since the land belonged to the company. The court held a company is a distinct legal person, but found the objection worked against the defendant herself whose chain of title depended on the alleged agents. Relying on United Assurance Co Ltd v Attorney General (overruling Bugerere) and Fubeco China Fushun, the court held no company resolution is required to authorize the filing of a suit; it suffices for the deponent to state he has authority.

p. 7
02

Privity of contract / authority of Jim Choge and Rehema Self Help Group to sell

Holding

There was no privity of contract; no sale agreement existed between the registered owners and Rehema Self Help Group or Aggrey Azelwa, and the letters of authority were not authorized, signed or sealed by the owners.

Reasoning

DW2 admitted there was no agreement between himself and Rehema Self Help Group, nor with Solongo Enterprises Ltd. The letters produced did not originate from the company or Barngetuny and there was no evidence of the co-owner's consent, which Section 91 of the Land Registration Act requires for dealings with an undivided share. There was no principal/agent relationship as defined in Bowstead and Reynolds on Agency. Discrepancies in the purchase price paid further undermined the claimed sale.

p. 7
03

Whether the defendant was a bona fide purchaser for value

Holding

The defendant was not a bona fide purchaser because her vendor DW2 had no title to pass and the defendant failed the Katende v Haridar diligence requirements.

Reasoning

Applying the Katende v Haridar criteria, the court found the defendant, DW2 and Rehema Self Help Group were not diligent: they were literate and ought to have known land transactions require written contracts signed by authorized persons with proper attestation. The defendant did not carry out an official search and admitted the agreement was not signed by the representatives of the registered owners. Since DW2 had no good title, the defendant acquired none; her remedy lies against him.

p. 8
04

Entitlement to the orders sought

Holding

The 4th plaintiff as registered owner has indefeasible and absolute title under Sections 24 and 25 of the Land Registration Act and was entitled to the orders sought.

Reasoning

The court found it undisputed that the 4th plaintiff is the registered owner and consequently the indefeasible and absolute owner entitled to all rights and privileges appertaining thereto. The defendant's trust claim was not pleaded and the sale agreement between her and DW2 disclosed no trust, agency or collateral contract. The court therefore granted vacant possession, permanent injunction, demolition and costs.

Legal principles established

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  • A company is a distinct legal person that can sue and be sued in its own name; only the company has capacity to enforce its legal rights over its property
  • A director authorized to act for a company may institute proceedings on its behalf without a formal board resolution; the Bugerere Coffee Growers requirement of a recorded resolution is no longer good law
  • A person cannot give a better title than he has (nemo dat quod non habet), save in rare exceptions such as a sale under an order of court
  • One who fails to prove good title from his vendor cannot claim protection as a bona fide purchaser for value; such a purchaser's remedy lies against his vendor

Court orders

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  1. 1.The defendant to give vacant possession of the suit land known as Eldoret Municipality Block 15/2224 within 45 days, failure of which eviction orders to issue
  2. 2.An order of permanent injunction restraining the Defendant, her agents and servants from entering, trespassing upon and remaining upon the said property known as Eldoret Municipality Block 15/2224
  3. 3.An order for the demolition of the structures on parcel of land known as Eldoret Municipality Block 15/2224 within 45 days at the defendant's cost
  4. 4.Costs of the suit to be borne by the defendant

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)
  • Land Registration ActSection 38(1)
  • Land Registration ActSection 91
  • Law of Contract ActSection 3(3)
  • Land ActSection 38(2)
  • Companies Actdoctrine of perpetual succession (referred to)
  • Civil Procedure RulesOrder III Rule 2(c)

Cases cited (17)

  • Dr. Joseph Arap Ngok v Justice Moijo Ole Keiwua & 5 others
    Civil Appeal No. Nai. 60 of 1997
  • Sai Office Supplies Limited v Rosemary Azivista Luseno & Another
    [2014] eKLR
  • Crispus Thuku Kinene v Teresia Waithira Machua
    [2017] eKLR
  • East African Safari Air Limited v Anthony Ambaka Kegode & another
    [2011] eKLR
  • Salmon v Salmon
  • Bugerere Coffee Growers Limited v Sebaduka & Another
    [1970] EA 147
  • Moir v Wallersteiner
    [1975] 1 All ER 849
  • Foss v Harbottle
    [1843] 2 Hare 461
  • Macfoy v United Africa Co. Ltd
    (1961) 3 All ER
  • O K N v M P N
    [2017] eKLR
  • Republic v The District Land Registrar Uasin Gishu County, Jonah Kariauki Mwaura & Byron Kipngetich Gawon Choge (Ex parte)
    Eldoret High Court Judicial Review No. 76 of 2011
  • Omondi v National Bank of Kenya Limited and Others
    [2001] EA 177
  • United Assurance Co. Ltd v Attorney General
    SCCA No. 1 of 1998
  • Fubeco China Fushun v Naiposha Company Limited & 11 others
    [2014] eKLR
  • Aineah Liluyani Njirah v Aga Khan Health Services
    [2013] Civil Application No. 194 of 2009
  • Diamond Trust Bank Kenya Ltd v Said Hamad Shamisi & 2 Others
    [2015] eKLR
  • Katende v Haridar & Company Limited
    [2008] 2 EA 173
Jurisdiction invoked
Original civil jurisdiction over a land dispute (plaint seeking eviction, injunction and damages for trespass); no specific constitutional provision cited

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, "Estate of Jim Kiptum Choge (Suing through the Administrators) Eva Chepkurui Cherogony & 3 others v Sarah Makungu [2021] KEELC 3921 (KLR)", Case Analysis (2021). Not stated in the judgment (plaint dated 30th January 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3921/eng@2021-03-03

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