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ELCDismissedEnvironment and Land Case (as per ruling; specific case number not stated in judgment)· [2024] KEELC 5667 (KLR)

Kinuthia & another v Assumption Sisters of Nairobi (Environment & Land Case E006 of 2024) [2024] KEELC 5667 (KLR)

Environment and Land Court
18 July 2024
LMLucy N. Mbugua
2,455 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court threw out a school's land suit because the people suing had no legal standing or ownership rights.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nairobi (Lucy N. Mbugua, J) determined a notice of motion dated 9 January 2024 seeking interlocutory injunctions to restore the 2nd applicant's school to possession and occupation of parcels 209/KAREN/2259/139 and 209/KAREN/11377 (225/137), and a preliminary objection dated 13 February 2024 by the Assumption Sisters of Nairobi Registered Trustees challenging the applicants' locus standi. The 1st applicant sued as donee of a power of attorney from Sister Josephine Warau Kariuki, claiming the respondent had unlawfully acquired the suit parcels and disrupted the school. The respondent countered that it owned both the school and the suit parcels, that Sister Josephine was merely a manager nominee without authority to grant the power of attorney, and that the dispute concerned internal management. The court first found the 2nd applicant was not the registered proprietor of the parcels and was not a proper party, its description in the plaint being unexplained and contradictory. The 1st applicant's power of attorney conveyed no proprietary rights since Sister Josephine held none; she was only a manager whose authority derived from the respondent. The court further held it guilty of material non-disclosure of Sister Josephine's membership of the respondent. It also held that school governance and management disputes fall under the Basic Education Act and outside the court's jurisdiction under Article 162(2)(b) and Section 13 of the ELC Act. The preliminary objection was allowed, the entire suit and application dismissed, with costs to the respondents payable by the 1st applicant.

Key legal issues

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01

Locus standi of the applicants

Holding

Neither applicant had locus standi: the 2nd applicant was not the registered proprietor of the suit parcels and was not a proper party, and the 1st applicant's power of attorney derived from a donor without mandate or proprietary interest

Reasoning

The suit parcels were registered in the names of Our Lady Of Peace Secondary School and Our Lady Of Peace Nursery And Primary School, not the 2nd applicant. The 1st applicant sued under a power of attorney from Sister Josephine Warau Kariuki, but she was shown only as a manager in the certificate of registration, with the respondent as manager/sponsor; her authority derived from the respondent and she held no proprietary interest. The suit was therefore incompetent from the outset.

p. 3
02

Jurisdiction of the ELC over school management disputes

Holding

The court's jurisdiction is confined to use, occupation of and title to land under Article 162(2)(b) and Section 13 of the ELC Act; governance and management of schools fall under the Basic Education Act and outside this court

Reasoning

The court noted the mandate of the ELC is restricted to use, occupation of and title to land. The Basic Education Act governs registration, governance and management of institutions of basic education, so disputes over school management do not fall within the court's mandate. The court relied on its own earlier ruling in Gems National Academy declining to interrogate school management issues.

p. 5
03

Material non-disclosure by the 1st applicant

Holding

The 1st applicant was guilty of material non-disclosure in failing to disclose that Sister Josephine is a member of the respondent

Reasoning

The court applied the principle from Re Estate of Julius Ndubi Javan (Deceased) that parties must make full disclosure of all material facts with utmost good faith. The 1st applicant failed to disclose that Sister Josephine, the donor of the power of attorney, was herself a member of the respondent, which undermined the applicants' case and the propriety of the suit.

p. 4

Legal principles established

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  • Issues relating to the governance and management of schools do not fall within the jurisdiction of the Environment and Land Court
  • A power of attorney cannot transmit proprietary rights the donor did not possess
  • Parties must make full disclosure of all material facts in judicial proceedings

Court orders

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  1. 1.The Preliminary Objection dated 13.2.2024 is allowed
  2. 2.The entire suit and the application dated 9.1.2024 are dismissed
  3. 3.Costs awarded to the respondents, payable by the 1st applicant/plaintiff

Authorities

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Legislation

  • Education ActSection 10(2)(2)
  • Registration of Documents Actgeneral compliance provisions
  • Basic Education Act Cap 211Section 43(1), Section 76, Preamble
  • Registration of Business Act Cap 499business name registration
  • Environment and Land Court ActSection 13
  • Constitution of KenyaArticle 162(2)(b), Article 53

Cases cited (7)

  • Litein Tea Factory Company Limited & another v Davis Kiplangat Mutai & 5 others
    [2015] eKLR
  • Mukisa Biscuit Company Ltd v West End Distributors
    [1969]
  • Daykio Plantations Limited v National Bank of Kenya Limited & 2 others
    [2019] eKLR
  • Law Society of Kenya v Commissioner of Lands & Others, Nakuru High Court Civil Case No. 464 of 2000
  • Alfred Njau and Others v City Council of Nairobi
    (1982) KAR 229
  • Re Estate of Julius Ndubi Javan (Deceased)
    [2018] eKLR
  • Gems National Academy Limited t/a Regis Schools v Regis Runda Academy Limited & 3 Others
    (Environment & Land Case E95 of 2023) [2024] KEELC 923 (KLR) (22 February 2024) (Ruling)
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

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, "Kinuthia & another v Assumption Sisters of Nairobi (Environment & Land Case E006 of 2024) [2024] KEELC 5667 (KLR)", Case Analysis (2024). Environment and Land Case (as per ruling; specific case number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5667/eng@2024-07-18

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