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ELCDismissedMachakos ELC Case (Plaint dated 27th July 2016)· [2022] KEELC 1999 (KLR)

Mavoko Land Development Company Limited v Mlolongo Catholic Church & 2 others [2022] KEELC 1999 (KLR)

Environment and Land Court
20 January 2022
6,490 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~26 min to read original · ~4 min brief

The bottom line

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A company lost its bid to evict a church and schools from land because it had no written sale agreement and had surrendered the plots under an approved subdivision plan.

What this practically means

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Executive summary

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The Plaintiff, a company incorporated in 2006 out of a self-help group, sued the Defendants - a Catholic church and two institutions it runs (a health centre and a secondary school) - seeking demolition and eviction from plots 97 and 98 (10 acres) carved out of L.R No 25062, Mlolongo, or alternatively payment of the current purchase price, plus mesne rent, costs and interest. The Plaintiff alleged it agreed in 2002 to sell the 10 acres to the 1st Defendant for Kshs 30,000,000, let it into possession, and that the Defendants refused to pay. The Defendants denied legal capacity to be sued, asserted allocation of the plots by the defunct Mavoko Municipal Council in June 2002, and contended the plots were public utilities reserved for surrender to the County Government of Machakos under the approved sub-division scheme. The court framed two issues: the Defendants' legal capacity and the Plaintiff's proof of ownership. It held that the religious society and the institutions lack capacity to be sued, rendering the suit against them a nullity. Proceeding to the merits nonetheless, the court found the Plaintiff failed to produce any written sale agreement as required by section 3(3) of the Law of Contract Act, defeating the sale claim. It further found that the Plaintiff's sub-division approval was conditional on surrender of all public roads and public utilities - expressly including the Francis of Assisi Secondary School and Health Centre - and that the Plaintiff, having never objected to or varied the conditions, ceded its rights over the plots. The suit was dismissed with costs on 20th January 2022.

Key legal issues

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01

Whether the Defendants are legal entities capable of being sued

Holding

The 1st Defendant, a religious society, and the 2nd and 3rd Defendants, institutions managed by it, lack legal capacity to be sued; the suit against them is a nullity.

Reasoning

The court applied the trite position that societies registered under the Societies Act are not bodies corporate and can only sue or be sued through their officials. The Plaintiff described the 2nd and 3rd Defendants as institutions established and managed by the 1st Defendant and led no evidence of their separate legal status. Reliance was placed on Living Water International and Maurice Ooko Otieno.

p. 5
02

Whether the Plaintiff proved a sale agreement entitling it to the purchase price or eviction

Holding

The claim based on an alleged sale agreement failed because no written agreement was produced as required by section 3(3) of the Law of Contract Act.

Reasoning

Applying sections 107 and 109 of the Evidence Act, the burden lay on the Plaintiff to prove the alleged sale. PW1 admitted there was no written sale agreement. Section 3(3) of the Law of Contract Act requires a contract for disposition of an interest in land to be in writing, signed and attested. Without such a document the claim could not stand.

p. 6
03

Whether plots 97 and 98 were surrendered as public utilities under the approved sub-division scheme

Holding

The Plaintiff was bound by the conditions of the approved sub-division scheme and ceded its rights over the plots occupied by the Defendants.

Reasoning

Under section 41 of the (repealed) Physical Planning Act and Rule 5(2)(c) of its Second Schedule, conditions of approval bind the owner, successors and assigns. The Plaintiff applied for sub-division and the approval required surrender of all public roads and public utilities, expressly including the Francis of Assisi Secondary School and Health Centre. The Plaintiff never objected to or varied the conditions.

p. 7

Legal principles established

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  • A society registered under the Societies Act, including a religious organisation, has no legal personality and can only sue or be sued through its officials.
  • A suit founded on a contract for the disposition of an interest in land cannot succeed without a written contract signed by all parties and attested as required by section 3(3) of the Law of Contract Act.
  • Conditions imposed on approval of a sub-division scheme bind the owner, who must surrender land reserved for public utilities; objection should be raised at approval stage, not afterwards.

Court orders

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  1. 1.The Plaintiff's suit is dismissed with costs

Authorities

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Legislation

  • Trespass ActSection 3 (Cap 294)
  • Societies ActSection 3 (Cap 108)
  • Law of Contract ActSection 3(3)
  • Evidence ActSections 107 and 109
  • Physical Planning Act (repealed)Section 41 and Rule 5(2)(c) of the Second Schedule
  • Civil Procedure RulesOrder 10 Rule 1 and Rule 22 (as referenced in St Mary School Nairobi)
  • Education ActRegistration of schools (as referenced in St Mary School Nairobi)

Cases cited (14)

  • Rhoda S Kiilu vs Jiangxi Water and Hydropower Construction Kenya Limited
    [2019] eKLR
  • African Orthodox Church of Kenya vs Charles Omuruka & Anor
    [2014] eKLR
  • Eritrea Orthodox Church vs Wariwax Generation Ltd
    [2007] eKLR
  • Kibera Blessed Academy vs World Missionary Evengelism of Kenya Registered Trustees & 4 others
    [2016] eKLR
  • Free Pentecostal Fellowship in Kenya vs Kenya Commercial Bank
    HCCC No. 5116 of 1992 (OS)
  • Maurice Ooko Otieno vs Mater Misericcordiae Hospital
    [2004] eKLR
  • St Mary School Nairobi vs Josephat Gitonga Kabigi
    [2004] eKLR
  • Dorice Atieno Rajoru & 145 Ors vs Mjahid Suo-chairman Harambee Maweni Committee self help group & 2 Ors
    [2016] eKLR
  • Apex Finance International Limited & another vs Kenya Anti-Corruption Commission
    [2012] eKLR
  • Goodwill & Trust Investment Ltd & Anor vs Will & Bush Ltd
  • Alfred Njau vs City Council of Nairobi
    [1983] eKLR 625
  • Living Water International vs City Council of Nairobi
    [2008] eKLR
  • Trustees Kenya Redeemed Church & Anor vs Samuel M'Obiya & 5 others
    [2011] eKLR
  • Janto Construction Company Ltd vs Enock Sikolia & 2 others
    [2020] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court jurisdiction over land disputes) - suit filed by Plaint in the Environment and Land Court

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mavoko Land Development Company Limited v Mlolongo Catholic Church & 2 others [2022] KEELC 1999 (KLR)", Case Analysis (2022). Machakos ELC Case (Plaint dated 27th July 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1999/eng@2022-01-20

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