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ELCDismissedEnvironment and Land Case Civil Suit 932 of 2016· [2023] KEELC 17455 (KLR)

Trustees, Kenya Ports Authority Pension Scheme v Nairobi City Council & another

Environment and Land Court
18 May 2023
6,101 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a pension scheme's land suit because an unincorporated trust must sue through its named trustees and it failed to prove ownership with a title document.

What this practically means

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Executive summary

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The Trustees of the Kenya Ports Authority Pension Scheme sued the Nairobi City Council and an MCA, alleging trespass and construction of kiosks on an access road junction amalgamated from LR No 209/10477/2 and 209/10216/2 in Bellevue Estate, and sought prohibitory and mandatory injunctions, general damages for trespass, and a declaration that a Temporary Occupation Licence issued by the Council was unlawful. The Defendants did not participate at trial. The 1st Defendant's written submissions raised two competency objections: absence of a resolution authorising the suit, and the Plaintiff's lack of capacity as named. The court first held that a board resolution is not required to institute suit, following binding Court of Appeal authority (Arthi Highway Developers, Bethany Vineyards, Makupa Transit Shade), and dismissed that objection. However, it held that the Plaintiff, being an unincorporated trust under the Trustees Act, could only sue through its trustees and not in its own name; the suit was therefore incompetent as brought by a non-suited body. The court nonetheless proceeded to the merits. It found that no certificate of title, search or other recognised ownership document was produced, so ownership could not be ascertained and the injunctions could not issue. Although an occupier may sue in trespass, the Plaintiff failed to prove that the Defendants committed the trespass. The declaration claim also failed because the impugned licence had been revoked on 27th July 2016. The suit was dismissed with costs.

Key legal issues

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01

Whether failure to file a resolution authorising the suit renders it incompetent

Holding

No; the Court of Appeal authorities establish that no resolution is required and the objection was dismissed

Reasoning

The court reviewed conflicting first-instance decisions and adopted the binding Court of Appeal line in Arthi Highway Developers and Bethany Vineyards, holding that absence of a resolution does not defeat a suit, particularly where no contrary evidence of lack of authority was adduced.

p. 8
02

Whether the Plaintiff, described as trustees under the Trustees Act, had capacity to sue in its own name

Holding

No; an unincorporated trust must sue through its trustees, so the suit was incompetent as brought by a non-suited body

Reasoning

The Plaintiff described itself as a pension scheme established under the Trustees Act; no document showed incorporation. Following Kihiu v Trust, an unincorporated trust has no separate legal existence and can only sue through its trustees; none of the witnesses were trustees.

p. 9
03

Whether the Plaintiff proved ownership of the suit property

Holding

No; no certificate of title, search or other recognised ownership document was produced

Reasoning

The court held that ownership of land is proved by title or supporting documents such as a letter of allotment or search extracts. Survey maps produced do not amount to title documents, so ownership could not be ascertained and injunctive relief could not issue.

p. 10
04

Whether trespass was proved

Holding

No; although occupation was uncontested, no wrong by the Defendants was proved

Reasoning

The court accepted that an occupier may sue in trespass, but the survey evidence only showed kiosks encroaching on service lines; there was no evidence that the Defendants themselves trespassed. A remedy cannot issue in the absence of a proved wrong.

p. 11
05

Whether the declaration of illegality of the licence could issue

Holding

No; the licence had been revoked on 27th July 2016 and orders would be in vain

Reasoning

The Plaintiff's own evidence, uncontroverted, was that the Temporary Occupation Licence was revoked. The court declined to make a declaration on a licence that no longer existed.

p. 11

Legal principles established

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  • A company or corporate body need not file a board resolution to authorise institution of suit; it suffices for the deponent to state they are duly authorised
  • An unincorporated trust can only sue through its trustees, not in its own name
  • Uncontroverted evidence does not automatically prove a case; the plaintiff's burden of proof is not lessened by a defendant's failure to adduce evidence
  • Trespass may be maintained by an occupier, not necessarily the owner of land

Court orders

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

Authorities

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Legislation

  • Trustees (Perpetual Succession) ActCap 164
  • Trustees Act
  • Civil Procedure RulesOrder 4 Rule 1(4)
  • Civil Procedure ActSections 1A and 1B
  • Companies Act2015
  • Evidence ActSections 107(1)(2), 109 and 112
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (33)

  • Jane Nanguda Kabwere v Evans Mutiso Mutunga
    [2012] eKLR

    Distinguished - no boundary dispute herein

  • Philomena Ndanga Karanja & 2 Others v Edward Kamau Maina
    [2015] eKLR

    Requirement of resolution before instituting suit

  • Affordable Homes Africa Limited v Ian Henderson & 2 others
    HCC 524 of 2004

    Requirement of resolution before instituting suit

  • Thome Farmers Company Limited v Farm of Faith Investors Ltd
    [2019] eKLR

    Requirement of resolution before instituting suit

  • Grace Mwenda Munjuri v Trustees of the Agricultural Society of Kenya
    [2014] eKLR

    Suit must be in names of current registered trustees

  • Desai v Patel t/a Sandpipers construction and Civil Engineering Services and 13 Others
    [2001] eKLR

    Capacity to institute suit

  • Kipngeno Rono v Kaporos Tea Factory Limited & 2 Others
    [2021] eKLR

    Capacity to institute suit

  • Eye Company (K) Limited v Erastus Rotich t/a Vision Express
    [2021] eKLR

    New issues cannot be raised in submissions

  • Obare Mochache Walter v Samwel Apoko Onkwani & 2 Others
    [2018] eKLR

    Party not permitted to make a case outside pleadings and affidavits

  • Lesrima Simeon Saimanga v Independent and Electoral Boundaries Commission & 2 Others
    [2018] eKLR

    Subsidiary rules cannot override an Act of Parliament

  • Odd Jobs v Mubia
    [1970] EA 476

    Court may base decision on unpleaded issue left to it

  • Ann Wairimu Wanjohi v James Wambiru Mukabi
    [2021] eKLR

    Odd Jobs remains good law; unpleaded issues in limited circumstances

  • Livestock Research Organization v Okoko & Another
    (Civil Appeal 36 A of 2021) [2022] KEHC 3302 (KLR)

    Board authorization is a matter of law on capacity/locus standi, determinable unpleaded

  • Pancras T. Swai v Kenya Breweries Limited
    [2014] eKLR

    High Court presumed to know the law

  • Falcon Global Logistics Co. Limited v Management Committee of Eldama Ravine Boarding Primary School
    [2018] eKLR

    Suit incompetent without resolution authorising filing

  • Bhatti Panel Beaters Limited v Surjit Singh Dhiman & another
    [2019] eKLR

    Lack of resolution does not defeat suit for benefit of company

  • Arthi Highway Developers Limited v West End Butchery Limited & 6 Others
    [2015] eKLR

    Bugerere rule overruled; no resolution required to authorise filing of suit

  • Bugerere Coffee Growers Ltd v Sebaduka & Anor
    (1970) 1 EA 147

    Former rule requiring resolution; since overruled

  • Tatu Naiga & Emporium v Virjee Brothers Ltd
    Civil Appeal No 8 of 2000

    Endorsed overruling of Bugerere case

  • United Assurance Co. Ltd v Attorney General
    SCCA No 1 of 1998

    Any authorised director has powers of the board to act for company

  • Fubeco China Fushun v Naiposha Company Limited & 11 others
    [2014] eKLR

    Applied the United Assurance principle in Kenya

  • Wanyiri Kihoro v Konahauthi Limited
    [2017] eKLR

    No merit in objection based on absence of resolution

  • Makupa Transit Shade Limited & Another v Kenya Ports Authority & another
    [2015] eKLR

    Sufficient for deponent to state they were duly authorized

  • Bethany Vineyards Limited & Another v Equity Bank Limited & 2 Others
    [2020] eKLR

    No requirement for resolution authorising filing of suit or affidavits

  • Apex Finance International Limited & another v Kenya Anti-Corruption Commission
    [2012] eKLR

    Proper parties are sine qua non of jurisdiction

  • Goodwill & Trust Investment Ltd & Another v Will & Bush Ltd
    SC.266/2005 (25.03.2011)

    Proper parties affect jurisdiction in limine

  • Julieta Marigu Njagi v Virginia Njoki Mwangi & another
    [2022] eKLR

    Locus standi raises a point of law capable of disposing of the suit

  • Kihiu & 3 others v Trust; Waweru & 4 others (Interested Party)
    (Environment & Land Case 1112 of 2013) [2022] KEELC 2416 (KLR)

    Unincorporated trust can only sue through its trustees

  • Erick Lumosi Asiligwa & another v Peter Felix Baumartner
    (2011) eKLR

    Position on suits by unincorporated trusts

  • Charterhouse Bank Limited (Under Statutory Management) v Frank N. Kamau
    [2016] eKLR

    Failure by defendant to adduce evidence does not automatically prove plaintiff's case

  • Noah Onyango Amwayo v Sylvanus O Otumba & another
    [2013] eKLR

    Register constitutes title; green card and search are extracts of title

  • Kinyua Nunu v Virginia Wamurua Kinyua & Another
    [2008] eKLR

    Plaintiff's onus to prove case not lessened where suit undefended

  • Samuel Mwangi v Jeremiah M'itobu
    [2012] eKLR

    Occupier, not only owner, may sue in trespass

Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - original civil jurisdiction over land

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, "Trustees, Kenya Ports Authority Pension Scheme v Nairobi City Council & another", Case Analysis (2023). Environment and Land Case Civil Suit 932 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17455/eng@2023-05-18

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