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ELCPartially AllowedMachakos ELC Case (title number not stated in judgment; related suit Machakos ELC Case Number 114 of 2018 referenced)· [2025] KEELC 195 (KLR)

James Mungaru & 56 Others v Kamulu Housing Co-operative Society Limited & 3 Others

Environment and Land Court
22 January 2025
ANA. Nyukuri
5,925 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Machakos court confirmed that buying land means nothing without a title, and a company claiming ownership must prove how it acquired the property.

What this practically means

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Executive summary

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Fifty-seven plaintiffs sued the Kamulu Housing Co-operative Society Limited (1st defendant), a second defendant and two other defendants over L.R. No. 8485, approximately 2034 acres in Machakos County. The plaintiffs bought plots from members of the 1st defendant, which facilitated the sales with fresh allotment letters and collected survey and title processing fees, but never issued them titles. The 2nd defendant entered the land, built a mosque, offices, schools and housing, and claimed to be the registered owner of L.R. 8485/2 I.R. 10656, filing a defence and counterclaim. The 1st defendant filed a preliminary objection on jurisdiction under section 76 of the Co-operative Societies Act, dismissed by ruling of 16th March 2022, and later supported the plaintiffs. At trial, PW1, a Principal Surveyor, could find no records for L.R. 8485/2, while the plaintiffs produced a title showing the 1st defendant registered as proprietor of L.R. 8485 in 2003. The 2nd defendant produced a title for L.R. 8485 itself, registered in 2018, and offered no evidence of how it acquired the land from Dullo Investments Ltd; its counterclaim was dismissed for want of prosecution. Applying Article 40 of the Constitution and section 26 of the Land Registration Act, and the root-of-title principles in Munyu Maina and Dina Management, the court held that L.R. 8485/2 does not exist, the 1st defendant's title is lawful and held in trust for the plaintiffs, and the 2nd defendant is a trespasser. Judgment was entered for the plaintiffs against the 1st and 2nd defendants: a permanent injunction against the 2nd defendant, vacant possession within 90 days with eviction in default, and specific performance compelling the 1st defendant to transfer the plots within 30 days, with the Deputy Registrar empowered to execute documents in default. The prayers for cancellation of the non-existent title and general damages were rejected, the claim against the 3rd and 4th defendants was dismissed without costs, and the 2nd defendant was ordered to bear the costs of the suit and counterclaim.

Key legal issues

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01

Existence and validity of L.R. Number 8485/2

Holding

L.R. Number 8485/2 does not exist; the 2nd defendant produced no title for it and the Survey of Kenya had no records of it

Reasoning

PW1, a Principal Surveyor, testified that the Survey of Kenya had no records or green card for L.R. 8485/2. The 2nd defendant pleaded title to L.R. 8485/2 but filed instead a title for L.R. 8485 registered in its name in 2018. The totality of the evidence pointed to L.R. 8485/2 being non-existent, and orders in respect of it could not issue in vain.

p. 9
02

Lawful registration of the suit property in the 1st defendant's name

Holding

The suit property L.R. 8485 is lawfully registered in the name of the 1st defendant; the 2nd defendant failed to show the root of its title

Reasoning

The plaintiffs produced a title showing registration in the 1st defendant's name on 30th June 2003. No evidence of fraud, misrepresentation, illegality or corruption attended that acquisition. The 2nd defendant never disclosed how it acquired the property from Dullo Investments Ltd, whether by sale, grant or gift, so its entry at number 21 of the register was unexplained.

p. 9
03

Plaintiffs' acquisition and entitlement to title

Holding

The plaintiffs lawfully purchased their plots from the 1st defendant's members with the 1st defendant's facilitation and are entitled to specific performance; the 1st defendant holds the property in trust for them

Reasoning

The plaintiffs produced sale agreements, receipts and allotment letters. The 1st defendant filed no defence to the plaintiffs' claim and confirmed the purchases and its willingness to process titles. Its unexplained failure to transfer titles means it holds the land in trust and must complete the transfers.

p. 10
04

Trespass by the 2nd defendant

Holding

The 2nd defendant, having no lawful interest in the suit property, is a trespasser and must vacate

Reasoning

The 2nd defendant admitted building offices, a mosque, schools and other developments on the land. Having failed to prove ownership of L.R. 8485 or even the existence of L.R. 8485/2, it holds no legal or equitable interest, so its occupation is unlawful trespass entitling the plaintiffs to vacant possession and a permanent injunction.

p. 10

Legal principles established

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  • A title may only be challenged on the ground of fraud or misrepresentation to which the proprietor is a party, or where it was acquired illegally, unprocedurally or through a corrupt scheme
  • Where a registered proprietor's root of title is under challenge, the proprietor must prove the legality of how the title was acquired, not merely produce the title instrument
  • A party who alleges it followed all necessary procedures in acquiring land must disclose the mode of acquisition and support it with evidence

Court orders

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  1. 1.A permanent injunction restraining the 2nd defendant, its agents, associates or employees, from trespassing, interfering, claiming or dealing in any way with L.R. Number 8485 and specifically the portions owned by the plaintiffs
  2. 2.The 2nd defendant, its agents, associates or employees or anyone claiming through it, ordered to vacate L.R. Number 8485 within 90 days of the judgment, and in default eviction to issue
  3. 3.A mandatory injunction and/or order of specific performance compelling the 1st defendant to transfer the respective portions of the suit property purchased by the plaintiffs to the plaintiffs within 30 days of the judgment, and in default the Deputy Registrar of the court is authorized to execute all relevant documents to ensure each plaintiff obtains title
  4. 4.The County Commander in charge of Machakos County to ensure compliance with the court orders
  5. 5.Costs of the suit and of the 2nd defendant's counterclaim awarded to the plaintiffs, to be borne by the 2nd defendant
  6. 6.The plaintiffs' case against the 3rd and 4th defendants dismissed with no order as to costs
  7. 7.The 2nd defendant's counterclaim dismissed with costs to the plaintiffs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court (Court stationed at Machakos); jurisdiction over the 1st defendant previously upheld in a ruling dated 16th March 2022 dismissing an objection based on section 76 of the Co-operative Societies 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, "James Mungaru & 56 Others v Kamulu Housing Co-operative Society Limited & 3 Others", Case Analysis (2025). Machakos ELC Case (title number not stated in judgment; related suit Machakos ELC Case Number 114 of 2018 referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/195/eng@2025-01-22

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