Trustees, Kenya Ports Authority Pension Scheme v Nairobi City Council & another
The bottom line
#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
#Executive summary
#Key legal issues
#Whether failure to file a resolution authorising the suit renders it incompetent
No; the Court of Appeal authorities establish that no resolution is required and the objection was dismissed
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.
Whether the Plaintiff, described as trustees under the Trustees Act, had capacity to sue in its own name
No; an unincorporated trust must sue through its trustees, so the suit was incompetent as brought by a non-suited body
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.
Whether the Plaintiff proved ownership of the suit property
No; no certificate of title, search or other recognised ownership document was produced
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.
Whether trespass was proved
No; although occupation was uncontested, no wrong by the Defendants was proved
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.
Whether the declaration of illegality of the licence could issue
No; the licence had been revoked on 27th July 2016 and orders would be in vain
The Plaintiff's own evidence, uncontroverted, was that the Temporary Occupation Licence was revoked.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.
Legal principles established
#- 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
#- 1.The Plaintiff's suit is dismissed with costs
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (Environment and Land Court) - original civil jurisdiction over land
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Muge (Suing as Administrator of the Estate of John Kimuge Kessei) v Kipkabus & 6 others (Environment and Land Case 888 of 2012) [2025] KEELC 5772 (KLR)[2025] KEELC 5772 (KLR)29 Jul 2025distinguished
Cite this brief
#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.