Mulwa (Petitioning in the interest of members of Mitaboni Katani Company and/or their respective nominees) v County Land Registrar, Machakos & 2 others; Mitaboni Katani Company Limited (Interested Party) (Environment & Land Petition E5 of 2020) [2022] KEELC 3641 (KLR)
The bottom line
#A Kenyan court ordered the Lands Registrar to register land transfers from a once-struck-off company, confirming restored companies are legally 'alive' again.
What this practically means
#Executive summary
#Key legal issues
#Whether Mitaboni Katani Company Limited subsists by virtue of the corrigenda in Gazette Notice No. 2653 of March 23, 2007
The company continues in existence as if it had not been struck off the register
Restoration of a struck-off company is governed by sections 914 and 915 of the Companies Act. Section 915 provides that upon restoration the company is deemed to have continued in existence as if never dissolved or struck off. Since the Gazette Notice of July 10, 1998 striking off the company was deleted by the corrigendum of March 23, 2007, the court found the interested party has continued to be in existence.
Whether the 1st respondent's refusal to register the transfers infringed the petitioner's legitimate expectation
The refusal was unjustified given the company's subsistence, the 1st respondent's prior registration of over 200 similar transfers, and receipt of correspondence on the reinstatement
Legitimate expectation may arise from consistent past practice or representation. The registrar had earlier effected over 200 transfers under similar circumstances and was informed of the reinstatement, yet declined to register properly executed transfers. The court associated itself with the cited authorities on legitimate expectation and held the 1st respondent was legally mandated to register the transfers.
Whether the petitioner was entitled to compensation and/or general and exemplary damages
No damages awarded for want of proof
While the petition sought damages for violation of rights, the court held that damages must be proved. In the absence of proof of loss, no compensation or general or exemplary damages could be awarded against the respondents. This head of relief was accordingly left ungranted even though the petition otherwise succeeded.
Legal principles established
#- The effect of restoration of a company to the register is that it is deemed to have continued in existence as if it had not been dissolved or struck off
- Legitimate expectation arises from a representation, promise or consistent past practice by an administrative authority
Court orders
#- 1.A declaration that by virtue of corrigenda contained in Gazette Notice Number 2653 of March 23, 2007 Mitaboni Katani Company Limited is subsisting and that the 1st respondent is not entitled to decline registration of the transfers presented by the company on the ground that it was wound up
- 2.An order of certiorari quashing the decisions of the 1st respondent refusing to register transfers in respect of title numbers Mavoko Town Block 2/12203 and Mavoko Town Block 2/12244
- 3.An order of mandamus compelling the 1st respondent to register transfers by Mitaboni Katani Company Limited as presented by the petitioner without considering the fact that the company was once struck off the register of companies
- 4.Costs of the Petition in the cause
- Jurisdiction invoked
- Constitution of Kenya 2010, including Article 40 (property rights), by way of a petition for declaratory and prerogative orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mulwa (Petitioning in the interest of members of Mitaboni Katani Company and/or their respective nominees) v County Land Registrar, Machakos & 2 others; Mitaboni Katani Company Limited (Interested Party) (Environment & Land Petition E5 of 2020) [2022] KEELC 3641 (KLR)", Case Analysis (2022). Petition dated September 23, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3641/eng@2022-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.