Ndung’u & 10 others v Original Wapenda Afya Bidii Co-operative Society Limited (OWAB) (Environment & Land Case 1562 of 2014) [2024] KEELC 972 (KLR)
The bottom line
#A Kiambu co-operative society lost its land dispute because its officials had no committee authority to litigate, and buyers with written, signed sale agreements got their plots.
What this practically means
#Executive summary
#Key legal issues
#Authority of the Defendant's witness and pleadings
The Defendant's Secretary had no authority under Section 28(3) of the Co-operative Societies Act or Order 4 Rule 1(4) CPR to defend the suit or swear the verifying affidavit, as no committee resolution or written authority was produced; the defence and counterclaim were therefore dismissed
Section 28(3) vests the power to institute and defend suits in the Management Committee, subject to the general meeting or by-laws. DW1 admitted on cross-examination that she produced no CR12 and no written authorisation. The court, guided by Spire Bank and East African Portland Cement, held that non-compliance is not a mere technicality where it persisted through trial, and struck out the defence and counterclaim.
Validity of the sale agreements
The sale agreements relating to plots 12, 13, 17, 26, 27 and 28 complied with Section 3(3) of the Law of Contract Act and Section 44 of the Land Registration Act and are valid and enforceable against the Defendant
The written agreements identified the parties, described the property, stated the purchase price and conditions, were signed by the Defendant's officials and witnessed by an advocate, and the vendor's advocates confirmed in writing that they were signed by the Defendant's officials. No forensic evidence of forgery was produced and no complaint was lodged against the drafting or witnessing advocates.
Plaintiffs' entitlement as bona fide purchasers
The 1st, 2nd, 4th, 5th, 7th and 9th Plaintiffs proved payment and possession on a balance of probabilities and are bona fide purchasers and owners of plots 12, 13, 17, 26, 27 and 28; the 3rd, 6th, 8th, 10th and 11th Plaintiffs failed against the Defendant
Each of the successful Plaintiffs produced a written sale agreement with the Defendant, receipts for payment and/or certificates of ownership evidencing full payment. The 3rd Plaintiff produced no sale agreement; the 6th, 8th, 10th and 11th Plaintiffs bought from third parties not joined to the suit, so no specific performance could issue against a Defendant who was party to no contract with them.
Whether fraud/forgery was proved
The Defendant's allegations of forgery failed for want of forensic proof and because no finding of fraud against John Ngei Vuti existed at trial
There was no forensic examination report on the agreements and receipts; the vendor's advocates had confirmed the agreements in writing; and the criminal cases against Vuti were pending or dismissed with no finding of fraud as at the hearing. Fraud being a serious allegation, the ordinary evidentiary threshold could not sustain it.
Remedy of specific performance
Specific performance was granted to the successful Plaintiffs because damages were inadequate, the Plaintiffs were ready and willing to complete, and they had taken possession and built
Guided by Reliable Electrical Engineers v Mantrac, the court exercised its discretion on the basis that there was a valid enforceable contract, no adequate alternative remedy since similar portions could not be obtained at 2009 prices, the Plaintiffs had taken possession and erected permanent buildings, and the award would prejudice neither party.
Legal principles established
#- A co-operative society must institute and defend suits through its Management Committee or with authority traceable to the general meeting or by-laws; unauthorised pleadings are defective
- A suit to enforce a contract for the disposition of an interest in land must be founded on a written contract signed by all parties with attested signatures, per Section 3(3) of the Law of Contract Act
- Allegations of fraud must be strictly proved to a standard above the ordinary balance of probabilities
- Even where a defendant's defence is unchallenged, a plaintiff must still discharge the burden of proof
Court orders
#- 1.The Defendant's defence and counterclaim dated 11/02/2015 are defective and are dismissed
- 2.An order of permanent injunction restraining the Defendant, their agents and servants from encroaching upon, trespassing onto, remaining on or interfering with plots 12, 13, 17, 26, 27 and 28 situate at Juja in Kiambu County
- 3.An order of specific performance against the Defendant in favour of the 1st, 2nd, 4th, 5th, 7th and 9th Plaintiffs in respect of plots 12, 13, 17, 26, 27 and 28 situate at Juja in Kiambu County
- 4.A declaration that there is a valid and enforceable undertaking against the Defendant
- 5.An order compelling the Defendant to honor their undertaking with respect to the 1st, 2nd, 4th, 5th, 7th and 9th Plaintiffs and Plots No. 12, 13, 17, 26, 27 and 28
- 6.Costs of the suit and the counterclaim awarded to the 1st, 2nd, 4th, 5th, 7th and 9th Plaintiffs
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over a claim relating to land situate in Kiambu County (suit property L.R. No. 4148/307 and 4148/308, Juja)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndung’u & 10 others v Original Wapenda Afya Bidii Co-operative Society Limited (OWAB) (Environment & Land Case 1562 of 2014) [2024] KEELC 972 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/972/eng@2024-02-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.