Jeremiah Creek Limited v Ndung’u & another; Imwati (Interested Party) (Environment and Land Case 103 of 2021) [2025] KEELC 5979 (KLR)
The bottom line
#A Kenyan court ordered a widow evicted from Diani land, ruling her late husband's estate had no valid claim because the company he was said to buy for didn't exist when the deal was signed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiff is the lawful and or bonafide owner of Diani/Kwale Complex 1069
- 2.Whether the Estate of the late Charles Kamau has proprietary rights in the suit land Diani/Kwale Complex 1069
- 3.Whether the 1st Defendant's counterclaim should be allowed
- 4.What final orders should issue
Key legal issues
#Validity of a pre-incorporation sale agreement
The sale agreement dated 23/03/2006 in favour of Escafeld Holdings Limited was void because the company was only incorporated on 16/08/2006; there was therefore no sale to Escafeld
The company search showed Escafeld was registered on 16/08/2006, after the sale agreement date. Applying section 44 of the Companies Act, 2015 and the authorities in Simona Rizzoti, a contract purporting to be made by a non-existent company binds only the person purporting to act for it. Charles also never signed the agreement, and the court cannot rewrite contracts for parties.
Who funded the purchase and construction - Millet or Charles
On a balance of probabilities Maureen Millet funded both the purchase and construction; the Estate of Charles has no proprietary interest
The vendor testified Millet paid the purchase price; DW1 had no documentary proof of Charles' contribution. Emails from Charles to Millet showed him requesting funds and a commission, inconsistent with ownership. DW1 failed to obtain bank records although nothing prevented her, and Charles never pursued the claim despite a 2011 demand notice.
Validity of the transfer to the Plaintiff under the Power of Attorney
The Power of Attorney donated by Millet authorised transfer of her interest to PW1, who used the Plaintiff as the vehicle; the Plaintiff is the lawful owner
The POA expressly empowered PW1 to transfer Millet's right, title and interest to him and register him as owner. PW1 chose to use the Plaintiff company, understandable given restrictions on foreign ownership. No evidence of forgery of the POA was adduced, and Millet's ceded wishes must prevail.
Capacity of the 1st Defendant to plead on behalf of Escafeld Holdings Limited
DW1 cannot pray on behalf of Escafeld, which is not a party; under the rule in Foss v Harbottle and the Salomon principle of separate legal personality, only the company can sue over wrongs to itself
Directors and shareholders are legally distinct from the company. As administrator of Charles' estate, DW1 could not claim Charles' shares or the company's property in this suit; the proposition to have the property registered in Escafeld's name or hers was not legally sustainable.
Burden of proof and impeachment of title
While a holder of a challenged title must defend its root, a challenger must first establish an interest in the title; the Plaintiff proved its case on a balance of probabilities
Applying Section 107 of the Evidence Act and Mbuthia Macharia, the legal burden rested on the Plaintiff to prove its interest and on the Defendant to establish her late husband's interest. The registration defects in the parcel file were not determined as the Defendant lacked standing to impeach the title; the title remains prima facie evidence of ownership.
Legal principles established
#- Until a company has been incorporated, it cannot contract or do any act, and a pre-incorporation contract binds only the person purporting to act for the company
- A party challenging a registered title must first establish its own interest in the property; failure to do so disentitles it from impeaching the title
- A wrong against a company must be sued on by the company itself, not by a shareholder, director or a director's widow (Foss v Harbottle rule)
- A court cannot rewrite a contract for the parties
Court orders
#- 1.Eviction of the 1st Defendant from Plot No. Kwale/Diani Complex/1069 and vacant possession thereof within 120 days from the date of delivery of the judgment
- 2.That the eviction shall be peaceful, dignified and carried out in a humane manner should the 1st Defendant fail to vacate at the expiry of the 120 days
- 3.The counterclaim is dismissed
- 4.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to title to land (Article 162(2)(b) Constitution; not expressly cited in the judgment)
Relief refused
#1st Defendant's counterclaim seeking a declaration that the transfer of the suit land to the Plaintiff was fraudulent
She failed to prove her late husband's interest in the suit property and lacked capacity to plead on behalf of Escafeld Holdings Limited, which was not a party
Plaintiff's invitation to invoke the doctrines of equity
The court declined to go beyond the prima facie title
Costs
Each party shall bear its own costs, the court taking into account that the 1st Defendant is widowed.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is therefore my finding that the agreement was void and there was no sale to Escafeld Holdings Limited.
The evidence leads on balance of probabilities that Maureen Millet funded the purchase of the suit property and construction.
What is clear is that Millet has ceded her rights and her wishes must prevail. The plaintifi is a lawful owner.
Consequently this court finds that the Plaintifi has proved its case against the 1st Defendant on a balance of probabilities and is entitled to the prayers sought.
Eviction of the 1st Defendant from Plot No. Kwale/Diani Complex/1069 and vacant possession thereof within 120 days from the date of delivery of this judgement.
In view of the fact that the 1st Defendant is widowed the court orders that each party shall bear its own costs.
Issues in the judgment
#The judgment records Lucy Mbatia as 'DW1 (sic it should be DW2)' and Susan Mweni as 'DW2 (sic DW3)', reflecting inconsistent numbering of defence witnesses
The court had earlier stated there was no valid sale agreement between Imwati and Escafeld, yet in the same passage notes 'I also had no good explanation why Charles did not sign the sale agreement either', treating Charles' non-signature as independently significant despite finding the agreement void
The station of the court is not expressly stated in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah Creek Limited v Ndung’u & another; Imwati (Interested Party) (Environment and Land Case 103 of 2021) [2025] KEELC 5979 (KLR)", Case Analysis (2025). Not stated in the judgment as provided (suit by plaint dated 22nd February 2017 in respect of Kwale/Diani Complex/1069). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5979/eng@2025-08-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.