Salim Awadh & 34 Others v Registered Trustees of Teleposta Pension Scheme
The bottom line
#Kenya's Environment and Land Court dismissed 35 tenants' bid to buy their flats because they couldn't prove any promise of first priority.
What this practically means
#Executive summary
#Key legal issues
#Representative capacity / locus standi of PW1 and PW2
Evidence of PW1 and PW2 stands only for their individual cases; the other Plaintiffs' claims were unprosecuted and dismissed.
Order 1 Rule 13 requires written authority signed and filed for one plaintiff to act for others. The Plaint was accompanied by a Verifying Affidavit of the 1st and 25th Plaintiffs, but the written authority of the other Plaintiffs was not exhibited, so the witnesses' evidence could not bind the rest.
Whether the Plaintiffs had first priority to purchase and a protectable legitimate expectation
No. The letter of expression of interest and Form A created no clear, unambiguous promise of priority; Form A was a mere request to be considered.
Applying the legitimate expectation principles from Communications Commission of Kenya and Attorney General v Muthuuri, the court found the representation ambiguous and expressly disclaimed contract formation. The documents produced disclosed no undertaking by the employer or Defendant according the Plaintiffs first priority.
Burden of proof regarding submission of Form A
Plaintiffs failed to discharge the evidentiary burden of proving they filled and submitted Form A.
Under Section 107 of the Evidence Act, a party asserting a legal right dependent on facts must prove those facts. Neither PW1 nor PW2 produced the Form A they claimed to have submitted, defeating their claim even on the alternative view of the letters.
Whether the Defendant's failure to issue offer letters was discriminatory
It was not discriminatory, given the Plaintiffs' admission that they did not sign the tenancy agreements which was a precondition for an offer letter.
Having found no priority right existed, the court held the failure to issue offer letters could not be discriminatory or unlawful, particularly as the Plaintiffs themselves did not sign the tenancy agreements required as a precondition to receiving an offer letter.
Legal principles established
#- Authority for one plaintiff to act for others must be in writing signed by the party giving it and filed in the case; absent such proof, testimony is confined to the individual witness.
- A legitimate expectation requires an express, clear and unambiguous promise; an expression of interest form does not create such an expectation.
- He who alleges must prove; failure to produce the document relied upon defeats the claim under Section 107 of the Evidence Act.
Court orders
#- 1.Dismissal of the Plaintiffs' suit with costs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over suit property (Jogoo Road and Elgeyo Marakwet Road flats)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Salim Awadh & 34 Others v Registered Trustees of Teleposta Pension Scheme", Case Analysis (2022). Environment and Land Case Civil Suit 739 of 2007. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/13631/eng@2022-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.