Ogolla & 2 others (Suing as Officials of Unimerics Self Help Group) v Unique Sacco Limited & another
The bottom line
#A Machakos court ordered a landowner to hand over completion documents so long-time plot buyers in Kenya can finally get their titles.
What this practically means
#Executive summary
#Key legal issues
#Whether the doctrine of privity of contract barred the Plaintiffs' claim against the 2nd Defendant
The 2nd Defendant was estopped from relying on privity of contract because its conduct (awareness of the purchasers' occupation, approving developments, and failing to supply completion documents) was contrary to the doctrine; a constructive trust arose in favour of the purchasers.
The court accepted the classical privity doctrine as stated in Savings & Loan v Gakombe and Dunlop, but invoked recognized exceptions. The purchasers had occupied and developed the land for over a decade with the 2nd Defendant's knowledge and without objection. The 2nd Defendant breached the Sale Agreement by failing to provide completion documents, delaying title processing and infringing the purchasers' property rights. Estoppel and constructive trust therefore displaced the privity objection.
Whether the Plaintiffs proved their claim against the 1st Defendant
The claim against the 1st Defendant was unchallenged and therefore proved, since the 1st Defendant adduced no evidence to controvert the Plaintiffs' averments.
The 1st Defendant filed a statement of defence but did not call any witness at the hearing. Under Section 107 of the Evidence Act, the burden of proof lay on the party asserting facts; the Plaintiffs' evidence, including the Sale Agreement and correspondence, went uncontroverted. The court accordingly found the claim against the 1st Defendant unchallenged and proved on a balance of probability.
Legal principles established
#- A party whose conduct is inconsistent with the privity doctrine may be estopped from relying on it, and a vendor who allows purchasers into possession with knowledge of their lack of title may be held to hold the title in constructive trust for them.
Court orders
#- 1.A mandatory order compelling the Defendants to issue to the Plaintiffs' Members Completion documents within ninety (90) days from the date of the judgment, to enable the Plaintiffs process their respective title documents for Plots LR 26699/25- 1, 2, 3, 4A, 4B, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74 and 75
- 2.Each party to bear their own costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction under Article 162(2)(b) of the Constitution (implied; not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogolla & 2 others (Suing as Officials of Unimerics Self Help Group) v Unique Sacco Limited & another", Case Analysis (2022). Environment & Land Case 111 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14983/eng@2022-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.