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ELCDismissedNot stated in the judgment as provided· [2024] KEELC 646 (KLR)

Gachoki & 3 others (Suing as Pastor in charge, Chairman, Secretary and Committee Members respectively on grounds Truth Church) v Mwendwa & 2 others (Environment & Land Case 460 of 2013) [2024] KEELC 646 (KLR)

Environment and Land Court
15 February 2024
3,695 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court upheld a church land sale, ruled the buyer an innocent purchaser, and ordered the church members occupying the land evicted.

What this practically means

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Executive summary

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The Plaintiffs, pastors/members of the Ground of Truth Church, sued claiming that the sale of land parcel Kirinyaga/Gathigiriri/1398 by the 1st Defendant, a trustee of the Church, to the 3rd Defendant was fraudulent, illegal and unlawful, and sought its retransfer to the Church plus costs. The 3rd Defendant by Counterclaim sought a declaration of trespass, eviction, general damages for trespass and mesne profits, and costs. The court framed four issues: existence of a sale agreement, whether it was fraudulent, whether the 3rd Defendant was a bonafide purchaser for value entitled to Counterclaim orders, and the reliefs to grant. The court found that the 1st and 2nd Defendants were the duly registered founding Trustees under the Certificate of Incorporation dated 19th March 1996, with no evidence of their removal or replacement at a general meeting, and therefore had authority to sell. Clause 5 of the Trust Deed requiring two Trustees to execute instruments was satisfied. The 9/7/2009 meeting at the DO's office, attended by all Plaintiffs and endorsed by the Chief and Assistant Chief, confirmed the sale, fixed a six-month vacation period, and provided for withdrawal of the Wang'uru case; the balance of the purchase price was paid and LCB consent and transfer followed. The 3rd Defendant was held to be a bonafide purchaser for value without notice of any defect. The Plaintiffs' about-turn suit four months after the compromise was held an abuse of process. The suit was dismissed with costs; the Counterclaim was proved, with a declaration of trespass, vacant possession within 60 days failing eviction, general damages of Kshs 100,000/- with interest, and costs to the 3rd Defendant. Judgment was delivered virtually on 15th February 2024 by J. M. Mutungi, ELC Judge.

Key legal issues

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01

Existence of the sale agreement

Holding

A valid sale agreement dated 22/5/2009 was entered into between the Church (through its Trustees) and the 3rd Defendant

Reasoning

The agreement was produced as D3 EX 1 and was signed by the 1st and 2nd Defendants as Trustees representing the Church as vendors, and by the 3rd Defendant as purchaser. The purchaser paid Kshs 80,000/- on execution with the balance of Kshs 220,000/- payable after Land Control Board consent. The court was satisfied on the evidence that the agreement existed.

p. 5
02

Whether the sale was fraudulent

Holding

No fraud established; the 1st and 2nd Defendants were still duly registered Trustees in 2009 and had authority to sell

Reasoning

The Plaintiffs produced no evidence that the founding Trustees were removed or that any change was registered. Clause 11 of the Constitution vested church property in the Trustees, and vacancies could only be filled at a general meeting. Clause 5 of the Trust Deed required at least two Trustees to execute instruments, which was satisfied by execution of the sale agreement, LCB application and transfer by the 1st and 2nd Defendants.

p. 5
03

Whether the 3rd Defendant was a bonafide purchaser for value

Holding

Yes; he dealt in good faith with the Trustees without notice of any defect and would not be expected to know the church's internal workings

Reasoning

The Trustees presented themselves as having authority to act for the Church. Any reservations the purchaser may have had were erased by the 9/7/2009 meeting at the DO's office attended by all Plaintiffs, at which the sale was confirmed to proceed, the balance was subsequently paid, LCB consent issued and transfer executed. The minutes were accepted as a proper record.

p. 5
04

Plaintiffs' occupation and the Counterclaim

Holding

Plaintiffs are in trespass; eviction ordered with general damages of Kshs 100,000/- awarded to the 3rd Defendant

Reasoning

The 3rd Defendant is the registered proprietor and vested with rights of ownership under Sections 24 and 25 of the Land Registration Act 2012, including exclusive possession. The Plaintiffs, having agreed in 2009 to vacate and having reneged, are in trespass. Since they had agreed as far back as 2009 to vacate, only nominal damages were appropriate, assessed at Kshs 100,000/-.

Legal principles established

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  • Trustees duly registered under a certificate of incorporation remain lawfully empowered to deal with church property unless removed and replaced at a regularly convened general meeting, with no evidence of a registered change of trustees
  • A purchaser who deals with persons presented as trustees, without notice of any internal defect, is a bonafide purchaser for value
  • A registered proprietor's rights of ownership are vested under Sections 24 and 25 of the Land Registration Act 2012, and occupation in violation of those rights is trespass

Court orders

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  1. 1.Plaintiffs' suit dismissed with costs to the 1st and 3rd Defendants
  2. 2.Judgment entered for the 3rd Defendant on the Counterclaim against the Plaintiffs jointly and severally
  3. 3.Declaration that the Plaintiffs, their agents and/or servants have trespassed on LR No. Kirinyaga/Gathigiriri/1398
  4. 4.Plaintiffs ordered to vacate and yield vacant possession of Kirinyaga/Gathigiriri/1398 within sixty (60) days, failing which an order of eviction to issue on application by the 3rd Defendant
  5. 5.3rd Defendant awarded Kshs 100,000/- general damages for trespass with interest at court rate from the date of judgment
  6. 6.Costs of the Counterclaim awarded to the 3rd Defendant

Authorities

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Legislation

  • Land Registration ActSections 24 and 25
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel Kirinyaga/Gathigiriri/1398 (not expressly cited in the judgment)

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, "Gachoki & 3 others (Suing as Pastor in charge, Chairman, Secretary and Committee Members respectively on grounds Truth Church) v Mwendwa & 2 others (Environment & Land Case 460 of 2013) [2024] KEELC 646 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/646/eng@2024-02-15

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