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ELCDismissedNot stated in the judgment provided (amended plaint dated 25/09/2014)· [2024] KEELC 7025 (KLR)

St Thomas Academy Limited v Githumu Kangema Limited and Others (Environment & Land Case 281 of 2013) [2024] KEELC 7025 (KLR)

Environment and Land Court
24 October 2024
MOMogeni
8,279 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~33 min to read original · ~4 min brief

The bottom line

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A school lost its claim to Nairobi land because it had no signed, witnessed sale agreement and the seller had no valid title to give.

What this practically means

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Executive summary

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The plaintiff, St Paul Thomas Academy Limited, sued the Githumu Kangema United Traders Company Limited, the Chief Land Registrar, the Attorney General and a fourth defendant, seeking declarations that the cancellation of its title to LR No. 209/3007/1, Nairobi and the subsequent registration of the 1st defendant were null and void, cancellation of the grant issued to the 1st defendant, issuance of a fresh grant, injunctive relief and costs. The plaintiff claimed it purchased the property for Kshs 5,000,000 under a transfer executed in December 2003, was registered in July 2005 on the strength of an undertaking by the Commissioner of Lands extending the lease, but learnt in February 2013 that its registration had been cancelled because the lease had expired. The 1st defendant denied ever selling the property, contending that three individuals purporting to act as directors had no company resolution and that the transfer was fraudulent; the State defendants denied fraud and maintained the registration was unprocedural as the lease had expired. At trial, the plaintiff's witness conceded there was no sale agreement, that caveats existed, and produced no proof of payment. The court framed three issues: validity of the transfer, entitlement to the orders sought, and costs. Applying the nemo dat quod non habet principle, section 3(3) of the Law of Contract Act, and section 26 of the Land Registration Act, the court held that directors without a company resolution could not transfer company property, that no enforceable contract existed, and that the expired lease meant nothing could pass. The plaintiff's claim was dismissed with costs to the 1st defendant, with an observation that a refund claim lay in a separate cause of action.

Key legal issues

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01

Validity of the transfer between the plaintiff and the 1st defendant

Holding

The transfer was invalid; the directors who signed had no company resolution and the lease had expired, so the 1st defendant had no title to pass

Reasoning

The court applied the nemo dat principle under section 23 of the Sale of Goods Act. The transfer produced was signed only by the 1st defendant's side; there was no sale agreement, no company resolution authorising the directors, and the lease had expired before the transfer. Registration could therefore confer no title on the plaintiff.

p. 12
02

Compliance with section 3(3) of the Law of Contract Act

Holding

There was no written, signed and witnessed contract for the disposition of land, so no suit could be founded on it

Reasoning

The plaintiff produced no sale agreement; its counsel admitted none existed. Section 3(3) requires a written contract signed by all parties and attested by a witness for any disposition of an interest in land to be enforceable. Absent such a contract, no equitable interest passed.

p. 11
03

Whether the plaintiff acquired an equitable or indefeasible interest protectable under section 26 of the Land Registration Act

Holding

No; the plaintiff failed to prove a valid sale agreement, payment or possession conferring an equitable interest, and its title had been cancelled

Reasoning

The court held registration and a certificate of title are conclusive proof of ownership, but no certificate of title in the plaintiff's name was produced, the alleged registration was cancelled in 2013, and no evidence of payment of the purchase price was adduced, so section 26 protection was unavailable.

p. 12
04

Costs

Holding

Costs follow the event; the successful 1st defendant is entitled to costs

Reasoning

Under section 27 of the Civil Procedure Act the court has discretion over costs; the successful party is entitled to costs absent exceptional circumstances, none of which existed here.

p. 14

Legal principles established

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  • No person can pass a better title than he has (nemo dat quod non habet); an unauthorised transfer by a non-owner has no legal effect
  • A contract for the disposition of an interest in land must comply with section 3(3) of the Law of Contract Act - be in writing, signed by all parties and witnessed
  • Company directors without a company resolution cannot sell company property registered in the company's name
  • Payment of rates, rent and utility bills does not confer ownership of property

Court orders

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  1. 1.The plaintiff's claim is dismissed
  2. 2.Costs of the suit awarded to the 1st defendant

Authorities

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Legislation

  • Sale of Goods ActSection 23(1)
  • Land ActSection 158; Section 38
  • Law of Contract ActSection 3(3)
  • Land Registration ActSection 26(1) and (2)
  • Civil Procedure ActSection 27
  • Auctioneers ActCap 526 (referred to within section 3(3))

Cases cited (5)

  • Haul Mart Kenya Limited v Tata Africa Kenya Limited
    (2017) eKLR
  • Katana Kalume v Municipal Council of Mombasa
    (2019) eKLR
  • Diamond Trust Bank Kenya Ltd v Said Hamad Shamisi & 2 Others
    [2015] eKLR
  • Bishopsgate Motor Finance Corporation Ltd v Transport Brakes Ltd
    (1949) 1 KB 322
  • Machakos District Cooperative Union v Philip Nzuki Kiilu
    CA No 112 of 1997
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a dispute relating to title to land (LR No. 209/3007/1, Nairobi)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "St Thomas Academy Limited v Githumu Kangema Limited and Others (Environment & Land Case 281 of 2013) [2024] KEELC 7025 (KLR)", Case Analysis (2024). Not stated in the judgment provided (amended plaint dated 25/09/2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/7025/eng@2024-10-24

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