Board of Trustee New Life Covenant Church (Kimilili Gospel Church) v Mwaniki (Environment & Land Case 70 of 2015) [2023] KEELC 640 (KLR)
The bottom line
#A Kenyan court ruled that once you gift land to a church and transfer its title, you cannot take it back or interfere with it.
What this practically means
#Executive summary
#Key legal issues
#Authority of an office holder to sue on behalf of a registered society
The plaintiff, one legal person, may sue through its office holders; the Reverend, as chairman and trustee taking part in management, was duly authorized and any lapses in the verifying affidavit are curable.
There is only one plaintiff, so Order 1 Rule 13(1) on multiple plaintiffs does not apply. Under section 2 of the Societies Act a chairman is an officer and may act for the society. The plaintiff's constitution contains no requirement of Board of Trustees authorization, and no trustee complained of want of authority. Guided by the Salat decision and sections 1A and 1B of the Civil Procedure Act and Article 159, the court sustains rather than strikes out pleadings on technical grounds.
Whether the defendant should be permanently injuncted from interfering with the suit land
Yes. Title was registered in the plaintiff's name without fraud; the defendant's earlier donation of parcel 1084 was completed on registration and cannot be recalled; his conduct, including destroying Church property, warranted a permanent injunction.
The suit land is registered in the plaintiff's name and no fraud or corruption in the acquisition was suggested, making the plaintiff the absolute and indefeasible owner under section 26(1) of the Land Registration Act, protected by Article 40(1) of the Constitution. The defendant admitted affiliation in 2002 and that Kimilili Gospel Centre was never separately registered. Following Twalib Hatayan, a donor cannot micromanage a completed donation to a public-spirited function. Destruction of the pulpit was desecration meriting an injunction.
Recall of a completed donation of land
A donation of land becomes complete upon registration of title in the donee's name and cannot be recalled; the donor retains no right, equitable or otherwise, to interfere with the property.
The defendant gifted parcel 1084 to the plaintiff in 2004, as shown on the Green Card. Relying on Twalib Hatayan, the Court of Appeal held a donor cannot micromanage a donation made for a public-spirited function. The court accordingly held that the defendant's relationship with the parcel ended upon registration, and he may only visit the suit land as any other worshipper.
Legal principles established
#- A completed gift of land, once title is registered in the donee's name, cannot be recalled by the donor, who may not micromanage the donation.
- A registered proprietor who obtained title without fraud, misrepresentation, illegality or corruption is the absolute and indefeasible owner entitled to protection under Article 40(1) of the Constitution.
Court orders
#- 1.A permanent injunction restraining the defendant either in person or through his relatives, agents or followers from trespassing onto the plaintiff's land parcels No Kimilili/Kimilili/1079, 1083, 1084 and 1085 and interfering with the plaintiff Church's affairs in any manner whatsoever
- 2.The defendant shall meet the plaintiff's costs of this suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act over land parcels Kimilili/Kimilili/1079, 1083, 1084 and 1085
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Board of Trustee New Life Covenant Church (Kimilili Gospel Church) v Mwaniki (Environment & Land Case 70 of 2015) [2023] KEELC 640 (KLR)", Case Analysis (2023). Not stated in judgment (plaint filed 2nd June 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/640/eng@2023-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.