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ELCStruck OutPetition 5 of 2018· [2023] KEELC 20668 (KLR)

Murema Farmers Company Limited v Mwai Company Limited & 2 others

Environment and Land Court of Kenya
5 October 2023
AOA O Ombwayo
8,054 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~32 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court struck out a land dispute petition because the company suing was not registered under the name it used, so the case never reached its merits.

What this practically means

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Executive summary

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Murema Farmers Company Limited petitioned the Environment and Land Court at Nakuru claiming to be the legal owner of L.R No 10120/1 and 10120/2 Subukia, purchased under a sale agreement dated 23rd June 1971 from S.O.V Hodge's Sidai Farm Limited. It alleged that Mwai Company Limited, in collusion with the Commissioner of Lands and the District Land Registrar, fraudulently obtained title to the parcels, destroyed the Petitioner's documents, and evicted its members. It sought declarations of ownership, restoration of the land, cancellation and reissuance of titles, a declaration of infringement of fundamental rights, and a perpetual injunction. The 1st Respondent denied the claim, questioned the Petitioner's existence and capacity, and invoked res judicata arising from Nakuru HCCC 77 of 2009, dismissed on limitation grounds. The 3rd Respondent also denied the allegations. After full trial, the Court framed capacity as the threshold issue. The Petitioner's own documents showed a 1977 change of name to New Kihanga Company Limited, and a Registrar's search showed Murema Farmers Company Limited as a private company with one director, John Mwangi Njambi, who was not part of the Petition. Although Articles 22, 258 and 260 liberalise standing, the Court held that legal capacity is paramount and that the Petitioner had come to court with a title that was not theirs, applying Kipsiwo and Mumo Matemu. The Petition was struck out with costs, without determination of the fraud and ownership issues on the merits.

Key legal issues

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01

Whether the Petitioner had capacity to lodge the constitutional petition

Holding

The Petition was struck out because the Petitioner failed to demonstrate it is registered as Murema Farmers Company Limited; the records showed a change of name to New Kihanga Company Limited in 1977 and that the current registered company had one director, John Mwangi Njambi, who was not part of the Petition.

Reasoning

The Court found the Petitioner's own documents (CR19 and Certificate of Change of Name dated 5th August 1977) showed Murema Farmers Company Limited had been renamed New Kihanga Company Limited. The Registrar's search showed Murema Farmers Company Limited as a private company with one director, John Mwangi Njambi, not listed among the Petitioner's members. Although Article 260 defines 'person' broadly and locus standi rules are relaxed under Articles 22 and 258, the Petitioner came to court with a title that was not theirs, and legal capacity remained paramount.

p. 14
02

Whether relaxed post-2010 locus standi rules cure the Petitioner's lack of legal capacity

Holding

No. While Articles 22, 258 and 260 relax standing, the Petitioner introduced a new dimension by coming to court with a title which is not theirs, and the relaxed standing rules could not save a petition filed by an entity without demonstrated legal capacity.

Reasoning

The Court accepted the Mumo Matemu and Kipsiwo principles that standing is liberalised and unincorporated groups may sue through persons with legal capacity. However, it distinguished this case: the identity of parties is a relevant element in substantiating a constitutional claim, and here the Registrar of Companies records showed the named Petitioner did not correspond to the entity asserting the claim, with the registered sole director absent from the Petition.

p. 12

Legal principles established

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  • Legal capacity is paramount in filing a constitutional petition; an entity suing in a name in which it is not registered lacks capacity and its petition may be struck out.
  • Rules of locus standi have been greatly relaxed after the enactment of the Constitution of Kenya 2010.

Court orders

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  1. 1.The Petition is struck out as having been filed without capacity
  2. 2.Costs of the Petition awarded (against the Petitioner)

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 21(2), 21(3), 22, 23(3), 258, 260, 40(1), 40(3), 40(6), 68
  • Land Registration ActSections 26(1), 80(1)
  • Limitation of Actions ActSection 7
  • Evidence Act, Cap 80Section 109
  • Registration of Titles Act (repealed), Cap 281Section 29
  • Companies Act, Cap 486 (Laws of Kenya)
  • Mutunga Rules (Legal Notice No. 117 of 28th June 2013)

Cases cited (11)

  • Merit Development Limited v Lenana Investment Limited & 2 others
    [2018] eKLR

    Fraud must be specifically pleaded and proved (relied on by Petitioner)

  • John Kirianyoni v Paul Ntomiaka M'mujuri
    [2021] eKLR

    Standard of proof of fraud (relied on by Petitioner)

  • Christopher Ndaru Kagina v Esther Mbandi Kagina & another
    [2016] eKLR

    Standard of proof of fraud (relied on by Petitioner)

  • Esther Kabugi Njuguna v Martha Chebet & 3 others
    [2020] eKLR

    Evidentiary burden regarding allegations against a party (relied on by Petitioner)

  • Dina Management Limited v County Government of Mombasa & 5 others
    Petition No 8 (E010) of 2021 (2023) (unreported)

    Indefeasibility of title does not protect illegally or fraudulently acquired titles (relied on by Petitioner)

  • Samuel Odhiambo Oludhe & 2 others v Jubilee Jumbo Hardware Limited & another
    [2018] eKLR

    Court's duty to protect the lawful proprietor from losing property to a holder of an illegally acquired title (relied on by Petitioner)

  • Republic v Chief Land Registrar & another Ex-parte Yosabia Kerubo Manyura
    [2018] eKLR

    Rectification of the land register under Section 80 of the Land Registration Act (relied on by Petitioner)

  • Kipsiwo Community Self Help Group v The Attorney General and 6 others
    [2013] eKLR

    Unincorporated entities have no legal capacity and must sue through a person with legal capacity (relied on by 1st Respondent and adopted by the Court)

  • R.G Patel v Lalji Makanji
    1957 EA

    Fraud must be strictly proved (relied on by 1st Respondent)

  • Mumo Matemu v Trusted Society of Human Rights Alliance and 5 others
    Civil Appeal 290 of 2012; (2013) eKLR

    Relaxed locus standi under Article 258; also cited by 1st Respondent on the threshold for constitutional petitions

  • Nakuru High Court Civil Case No 77 of 2009 (judgment by Justice Omondi)

    Prior suit between the same parties dismissed on limitation; findings on capacity and fraudulent acquisition relied on by both sides

Jurisdiction invoked
Articles 22, 23, 40, 165 and 258 of the Constitution of Kenya 2010 (constitutional petition on enforcement of Bill of Rights and property rights)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Murema Farmers Company Limited v Mwai Company Limited & 2 others", Case Analysis (2023). Petition 5 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20668/eng@2023-10-05

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