Kapese Community Charitable Trust v African Camp Solution

2. On its part, the defendant entered appearance on 21/03/2023. It thereafter led its statement of defence dated 05/04/2023. It denied the averments and contents set out in the plaint maintaining its innocence. It prayed that the suit be dismissed with costs. The Plainti ’s case 3. The plainti called two witnesses to the stand: PW1 Dorcas Akai Akuru, the plainti’s former CEO serving between August 2019 and November 2023 and PW2 Peter Lochuchu Clement, a trustee. When PW1 was called to the stand, she adopted her witness statement dated 16/02/2023 as her evidence in chief. She testied that by agreement dated 13/02/2014, the defendant and Tullow Kenya B.V. Limited, agreed to set up a charitable trust on behalf of the Kapese Community; the plainti herein. Its certicate of incorporation was marked PExh3. She, however, claried that at the time of ling suit, the plainti and not been incorporated. 4. The idea was to receive funding from a portion of the revenue from bed occupancy from the Integrated Operating Base and the service charge. This would be derived from rental payments made by the lessee, sub-lessees or licensees for occupation of the land to supporting community-based projects in the trust area. 5. It was explained that generally, the defendant was in the business of providing comprehensive and professional services to organizations involved in operations in remote or hostile areas where accommodation is not readily available. In that regard, the defendant’s task is to manage the buildings, run and organize xed and/or temporary camps allowing clients to focus on their core business activities. 6. On the other hand, the plainti is a group of local families and community residing in the trust area. The group comprised of pastoralists, herders and other persons entitled to have legislative claim to be part of the community. This is based on common ancestry, similar culture or unique mode of livelihood as dened by the trust deed. 7. By lease agreement between the defendant and the County Government of Turkana, the defendant was the lessee of all that property measuring 318.60 acres (2 kilometres by 0.85 kilometres). The property is situated in Kapese area in Lokichar Ward of Turkan South District within the County Government of Turkana. It was a term of agreement that Tullow Kenya B.V. Limited would meet bed occupancy fees and service charge derived from rental payments from various occupiers. Ther was no other obligation on its part. 8. It was also agreed that a bed night fee for the camp would be charged at USD 5 per occupant per night and a levy rate of 5% on the rent, sub-lessee or licenses of Tullow Kenya B.V. Limited. Those sums would be withheld by Tullow Kenya B.V. Limited for onward transmission to the plainti. 9. Furthermore, the defendant was required to pay a xed rate of USD 0.25 per square meter as land rent to the head lessor, the County Government of Turkana. This was payable as long as the lessees occupied the premises. Additionally, where the lessor made concessions to a lower rate, the balance of the dierence between the lower rate and USD 0.25 would be paid to the plainti. 10. Pursuant to a license agreement dated 13/02/2014 between Tullow Kenya B.V. Limited and the defendant, Tullow Kenya T.V. Limited was licensed to purchase, dispose and hold property in trust, conduct transactions, incorporate any companies, invite donations and partnerships, operate bank accounts and otherwise use the priority as may be necessary in the course of its drilling and exploration activities in the area. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18215/eng@2025-12-03 2

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11. At its own expense, the defendant converted the property into an Integrated Operations Base that provided for accommodation, a transport hub for land and air, storage, work facilities, oce space and fuel supply. An airstrip under Category C Aerodrome was also set up. Furthermore, the charitable trust to be set up on behalf of the plainti was designed to receive a portion of the funding from the revenue of bed occupancy from the Integrated Operations Base and service charge derived from rental payments by the defendant. This was intended to support community projects in the trust area as the property leased was community land. 12. It was computed that in total, Tullow Kenya B.V. Limited was required to pay an annual rent of USD 1,933,872.00 for the rst three (3) years of the license agreement and subsequently, an annual rent of USD 996,936.00 for the remaining term. Tullow Kenya B.V. Limited, it was testied, made all remittances to the plainti as per the lease agreement for 5% bed levies for the period 2014 to 2021. 13. In spite of the above agreements, PW1’s evidence was that the defendant failed to honor its obligations by failing to remit 5% of revenue as land rent to the plainti since 2014 to date. Yet, the defendant continued to make use of the property and reap proceeds from the same. 14. PW1 recalled that the defendant sued Tullow Kenya B.V. Limited in Kitale ELC Cause No. 17 of 2021; African Camp Solutions vs. Tullow Kenya B.V. Limited and Kapese Community Charitable Trust over unpaid annual rent for a period of ve (5) years. It further sought outstanding arrears from 2019 to 2021 when Tullow Kenya B.V. Limited was still in occupation of the suit premises. The matter was determined by consent letter dated 15/12/2022 [PExh2] where Tullow Kenya B.V Limited was to pay the defendant USD 1,500,000.00 in full and nal settlement of the claim. 15. PW1 explained that the defendant received the sum of USD 7,735,448.00 from Tullow Kenya B.V. Limited as rent dutifully paid for the period January 2014 to January 2019. However, the defendant had not remitted the 5% contribution translating to USD 386,774.40 (Kshs. 46,412,928.00). 16. In addition, the defendant received USD 3,722,889.00 as outstanding arears for the period February 2019 to the expiry of the lease agreement. However, the 5% remittance of USD 18,614,445.45 (Kshs. 22,337,334.54) was not paid to the plainti. This, PW1 lamented, was in total disregard of the agreement dated 13/02/2014 and the trust deed. It is for those reasons that the plainti led the suit. 17. PW2 a trustee member of the plainti and representing four families living near the Kapese Operation Camp adopted his witness statement dated 17/09/2024. He testied that though he was registered as a member of the plainti on 04/01/2019, the certicate of registration indicated that the plainti was registered on 29/05/2023, issued after the suit had been led. It was registered with fteen (15) trustees. He however stated that they were fourteen (14) in number that authorized to le suit but did not le the resolution. He could not however conrm whether an unincorporated trust had the legal capacity to sue. 18. PW2 continued that the plainti’s objective was to implement dierent projects in the community with funds received from investors of the oil extractive industry. He recalled that the plainti received Kshs. 156 million from Tullow Kenya B.V. Limited. It utilized a larger portion of the sums in education, health, water and community management training, leaving a balance of Kshs. 32 million. The said Tullow Kenya B.V. Limited also paid service charge to the plainti. He admitted that he was not aware of the letter dated 08/02/2016. 19. PW2 alleged that they held a meeting with the defendant to furnish the relevant documents for accountability purposes but that did not take place. He armed that PW1 was their CEO but could not establish if she was aware of the defendant’s projects. PW2 also admitted that the minutes referred to in page 59 of the defendant’s documents, the plainti-members applauded the work of the https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18215/eng@2025-12-03 3

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defendant. He defendant that though the defendant knew that they plainti members were supposed to be participants in the meetings, they were never invited. He was absent from the meeting. For that reason, he was emphatic that the defendant had not carried out any projects in their area of domicile. 20. PW2 continued that though the defendant was part of the plainti’s agenda in several meetings, their representatives were never asked to be excluded from the meetings. They were not invited in the meetings. During the passing of their resolution to sue the defendant, he conrmed that Tullow Kenya B.V. Limited was not present. That the onus was on the defendant to enjoin it to these proceedings. 21. PW2 testied that the defendant once met them at a hotel in Nairobi. In that meeting, the defendant’s representatives informed them that they had no money to give them as they spent it on paying bills, statutory deductions and paying directors. The defendant’s representative thus oered to give them Kshs. 2 million. However, the plainti members declined that oer hence the suit. He urged this court to grant the reliefs sought in the plaint. He explained that the Kshs. 68,750,262.54 was arrived at from 5% of the rent charge which Tullow Kenya B.V. Limited paid the defendant. This accounted for a claim of Kshs. 46,412,928.00 + Kshs. 22,337,334.54. 22. PW3 Cynthia Mudanye an advocate of the High Court of Kenya, testied that she registered the plainti and a certicate of incorporation issued. She conrmed that all statutory requirements were complied with, stamp duty was paid. She produced the certicate of incorporation marked PExh2 (sic). She further testied that she participated in the registration of the trust deed franked on 01/02/2019. The certied copy of the trust deed was thus produced and marked PExh1. 23. PW4 Hon. Nancy Rop interim deputy registrar produced the original le in Kitale ELC No. 17 of 2021. She produced the plaint, list of witnesses and witness statements in evidence as PExh5, PExh6 and PExh7. From the proceedings in the le, the plaint was amended on 10/11/2022 and led on 14/11/2022. A consent was adopted on 25/01/2023. The interested party, the plainti herein was present and participated in the proceedings of the day. She conrmed that the court had the jurisdiction to determine the dispute before it. The Defendant’s case 24. The defendant called DW1 John Muhoho, the defendant’s investor and director to the stand. He adopted his witness statement dated 06/09/2024. His co-directors were David Walker and Daniel Walker. His evidence was that the plainti lacked legal status and therefore lacked the locus standi to institute the present proceedings. This is because it was never duly registered when the defendant and Tullow Kenya B.V. entered into an agreement on 13/02/2014. 25. He adduced a copy of the trust deed that was marked DExh1. It was executed by his co-director David Walker. The said agreement envisioned that a charitable trust be set up on behalf of the Kapese Community in order to receive funding. In that vein, the defendant contracted with Tullow Kenya B.V. to provide the services of forming an Integrated Operation Base (IOB) in Kapese community. In augmenting this evidence, he produced a copy of agreement for licence, dated 13/02/2014, set to expire on 31/01/2019, marked DExh2. Going by this, he was of the view that thus there did not exit an area that could be dened as a trust area. In the circumstances, he explained that it could not be said that any one person or family could legislatively claim to be part of the community on account of common ancestry, similar culture or unique mode of livelihood. 26. DW1 explained that the trust was not created because the community failed to agree on the membership that would be trustees. Furthermore Tullow Kenya B.V. refused to incorporate it. It was not the responsibility of the defendant. In support of this, he produced a copy of minutes of a meeting held on 08/12/2018 marked DExh3. He continued that while it was agreed that there would be a bed https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18215/eng@2025-12-03 4

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night fee for the camp costing USD 5 per night occupant and a levy of 5% on the rent that the proposed community charitable trust would be allocated the dierence between the xed rate of USD and any lower negotiable rate. The failure of the registration of the trust meant not no payment could be made as envisioned. 27. Following the delays in obtaining registration of the trust, DW1 testied that it was agreed between the Turkana County Government, the community and the defendant that any funds that would have been payable by the defendant would, as a goodwill gesture, be paid towards Kapese Community Projects. In a meeting, he acknowledged that Josephine Akim, the area chief and a member of the community, was present. 28. Notwithstanding the non-existence of the trust, DW1 testied that the defendant paid an ex-gratia amount totaling Kshs. 169,287,433.57 towards Kapese community projects. PW2 was among the people who saw was aware of and were beneciaries of these projects. The projects covered the elds of education, bursaries, water, health services, development of small business enterprises and emergency between 2015 and 2019. Those payments were calculated on information received from Tullow Kenya B.V. on bed occupancy and paid out in accordance with gures received from Tullow Kenya B.V. He produced a schedule of payments made towards the Kapese Community projects marked DExh5. 29. DW1’s evidence was that Tullow Kenya B.V. did not make all the remittances to the Defendant and did not make 5% bed levies for the period 2014 to 2021. In support of this allegation, DW1 produced a letter dated 31/08/2016 marked DExh6. He therefore contended that it was incorrect for the plainti to state that the defendant refused to remit 5% of its revenue as land rent. He contended that the defendant has made up to date payments to the County Government of Turkana. It was therefore not privy to any breach of contract as it had honored its obligations. 30. DW1 conrmed that the defendant indeed led a suit against Tullow Kenya B.V. in Kitale ELC No. 17 of 2020 for unlawful occupation and a consent was arrived at between the parties. It was agreed that the sums claimed were not for unpaid rents. That it refused to pay for the land since the defendant held no lease. He produced correspondences and of dispute between the defendant and Tullow (K) B.V. marked DExh7 and statements of account showing disbursements of funds for community projects marked DExh8. 31. DW1 maintained that the defendant had not received USD 7,735,488.00 from Tullow Kenya B.V. The plainti was therefore not entitled to 5% of that sum. He added that the plainti was not entitled to any outstanding areas of USD 3,722,899.00 as outstanding arrears owed by Tullow Kenya B.V for the period beginning February 2019 to the expiration of the lease period. DW1 recalled that it sought extension of the contract with Tullow Kenya B.V. but that did not materialize. It was at this juncture that the plainti was incorporated; when its business ceased to operate. 32. DW1 testied that certain persons named as trustees were never persons that were contemplated when the trustee was created. These are Dorcas Akom, Erastus Ethekom, Sylvano Mutembei and Eyani Abengole. That it had attended all meetings it was invited to by trustees. He conrmed that the trust deed did not operate retroactively. Its mechanisms were set up by the County Government, the area MCA and MPs, the area chief and council of elders as stakeholders. Regurgitating that the defendant was not indebted to the plainti at all, DW1 prayed that the suit be dismissed with costs. 33. DW2 Lotabo Lopenek Shaapan, a ward administrator at Turkana County Government, testied that he initially served at Lokichar ward from 2015 to March 2019, the area where the subject matter was situated. He testied that he complied the minutes dated 29/01/2016 and 04/04/2017 that were marked DExh4. He added that the meetings were chaired by the subcounty administrator Turkana South and coordinated by the national and county governments and not the defendant or Tullow https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18215/eng@2025-12-03 5

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Kenya B.V. The members of the plainti participated in the meetings. He conrmed that the minutes were a true reection of the transpirations that occurred during the meetings. 34. DW3 John Lokoli, an employee of the County Government of Turkana since 2014 recalled that he interacted with the defendant and wrote a letter dated 08/02/2016 that was marked DExh4. He conrmed that the community held an agreement with the defendant to share prots. An issue arose prompting a stakeholder engagement held on 29/01/2016. The stakeholders included Community elders, faith-based organizations, CSOs, maendeleo ya wanawake, your and leaders, MCAs, county government ocers and government ocers, chiefs, DCC and assistant county commissioner. 35. One of the directors of the defendant, Willy Roberts, said that there was some for the community that had accrued to it from the land rent arising from the land given by the community to the defendant. It was then agreed that the money would be used for community projects. DW3 chaired the said meeting. During the meeting Samuel Echoras awas named as the chairman of the Kapese community. Projects were thereafter put in place by the defendant. He recalled that Kshs. 31,000,000.00 was invested in boreholes. Money was also allocated to bursaries and relief. More money was injected into the community in 2017. 36. DW4 Jockshan Ebei a camp manager working for the defendant and secretary of the Kapese Community projects implement committee established on 29/01/2016 adopted his witness statement dated 13/11/2024 as his evidence in chief. He also produced account statements marked DExh9 – DExh21. His evidence was that the committee was set up in response to pressure by the community on the defendant’s use of their land. He added that by agreement between the defendant and Tullow Kenya B.V., the defendant was to pay land levy revenue to the Kapese community during the pendency of the community projects. 37. When it was realized by the community that there was a delay from 2014 and 2016, it asked the defendant to give them their money to kick start the benet of the prots. This led to the stakeholder meeting held on 29/01/2016. It was organized by the national and county governments. The defendant was invited to assure the community that they had remitted the land levy funds. That is the 5% amounting to Kshs. 31,000,000.00 collected between 2014 and 2016. The community was ably represented. 38. Also present in the meeting, inter alia, were the DCC, chiefs, women groups, council of elders’ representatives, the youth, persons living with disabilities, church representatives, maendeleo ya wanawake and the cunty and national government. It was resolved in the meeting that funds for the community from the levy fund were available from the defendant. Some of the Kapese community elders were appointed to represent the community in that meeting. 39. DW4 testied that the committee held several meetings to roll out the community projects. These projects were water related projects, bursaries and small-scale groups. Money was disabused and properly utilized, DW4 continued. He thus stated that the reliefs sought by the plainti had already been utilized by the Kapese community. He further conrmed that transactions were done through cheques, bank transfers, MPESA and directly to institutions. 40. DW4 veried that Tullow Kenya B.V. did not send any money for the bed levy. He added that the sum of Kshs. 31,000,000.00 was arrived at based on the agreement between it and Tullow Kenya B.V. that ended on 31/01/2019. He also produced statements of accounts in 2018 and 2019 made for bursaries and other projects. 41. He recalled that the committee advertised for bursaries for those interested before making payments after approving those that have applied for them. At the end of the project a sum of over Kshs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18215/eng@2025-12-03 6

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100,000,000.00 had been expended. He testied at as at 2024, the camp was run by Tullow Kenya B.V. he recalled that the community was very pleased with the projects the defendant had set up and there were no complaints lodged against them. DW4 thus denied the averments set out in the plaint praying that the suit be dismissed. Submissions 42. At the close of the evidence, parties argued their cases via written submissions persuading me to nd in their favor. This court has considered the elaborate submissions led by the parties and thanks the respective Counsel for their industry. 43. The plainti led written submissions with attached authorities dated 10/03/2025. Having abridged the facts giving rise to the dispute, the plainti submitted that it had proved its case on a balance of probabilities by establishing that a trust was created on 13/02/2014 without duress, mistake or fraud. It submitted that the defendant failed to honor its obligation and the duty called upon by this court was to enforce that contract. In its view, the defendant failed to demonstrate that the expenditures they purported to spend were meant to benet members of the Kapese community. It therefore prayed that the suit be allowed with costs. 44. The defendant led written submissions dated 09/04/2025. It summarized the facts giving rise to the dispute to submit that the plainti did not have capacity to sue as it was unincorporated as admitted in paragraph 1 of the plaint. Accordingly, the entire suit was incompetent and incurably defective. Furthermore, no authority was adduced from the trustees to demonstrate that authority was granted to le suit. 45. The defendant continued that the claim for Kshs. 22,337,334.54 for the period February 2019 to the expiration of the lease could not stand as the licence agreement expired on 31/01/2019. It argued that contrary to the plainti’s contention, the defendant was lauded for its investments to the community as was evidenced in the stakeholder engagement that was held on 26/02/2019. That there was credible evidence to demonstrate that at least Kshs. 100,000,000.00 was invested in the community for bursaries, payment to women and self-help groups, hospital bills, medical and funeral expenses, existing water projects and other general contributions. For those reasons, they prayed that the suit be dismissed with costs for the plainti had not proved its case on a balance of probabilities. Analysis and determination. 46. I have considered the evidence on record, examined the parties’ submissions and securitized the documents relied on by the parties and analyzed the law. Having done so, I nd that the following germane issues fall for determination, and which I proceed to determine sequentially are as follows: Whether the plainti had the standing the sue 47. At the fulcrum of the dispute lay an allegation by the defendant that the plainti, having failed to be incorporated as a trust, was not capacitated to sue. In other words, the plainti had no locus standi. It is common ground that the plainti obtained its certicate of registration on 29/05/2023. This was way after the suit had been led on 16/02/2023. In the parties’ description, of themselves the plainti pleaded, at paragraphs 1 and 5 as follows: “ 1. The plainti is an unincorporated public community charitable trust established pursuant to an agreement dated 12th February 2014 between the Defendant and Tullow Kenya B.V. and its partners during operation of the Integrated Operation Base… https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18215/eng@2025-12-03 7

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5. 48. The Plainti is a group of local families and local community that resides in the trust area comprising of pastoralists, herders and any other persons who are entitled to have legislatively claimed to be part of that community on account of common ancestry, similar culture or unique mode of livelihood as dened by the trust deed signed on 13th February 2014 between the defendant and Tullow Kenya B.V.” It is apparent from the description of the Plainti, coupled with the fact of registration after the suit had been led and heard almost fully, that the plainti was unincorporated at the time of ling this suit. It was not in compliance with section 3 (3) of the Trustees (Perpetual Succession) Act which provides as follows: “ The trustees shall thereupon become a body corporate by the name described in the certicate, and shall have perpetual succession and a common seal, and power to sue and be sued in their corporate name and, subject to the conditions and directions contained in the certicate, to hold and acquire, and by instruments under the common seal to convey, transfer, assign, charge and demise any movable or immovable property or any interest therein now or hereafter belonging to, or held for the benet of, the trust concerned in the same manner and subject to such restrictions and provisions as trustees might so do without incorporation.” 49. Deducing from the above, any registered trust has the ability to sue and be sued in its own name having garnered the status of a body corporate. This was not the case for the plainti. In any event the plaint describes an entity that was established under an agreement dated 13th February 2014 yet the claimant in this suit was established in 2019. In the circumstances, since the plainti was unincorporated, it ought to have sued in the names of the trustees and not in its own name. This was the holding of the court in the case of Erick Lumosi Asiligwa & another vs. Peter Felix Baumartner [2011] eKLR that held as follows: “ In sum Gentiana Self-Help Centre is not a trust in terms of Cap 164. It is not a corporate body. It cannot sue and nobody can sue on its behalf as its registered trustees.” 50. Similarly, in the case of Kihiu & 3 others vs. Trust; Waweru & 4 others (Interested Party) [2022] KEELC 2416 (KLR), this Court held as follows: “ The Defendant and the Interested Parties assert that the Trust having not been incorporated, it remains an unincorporated entity which lacks capacity to sue, without including all the Trustees, while the Plaintis maintain that they are the executive members of the Trust duly authorized by the Board of Trustees to institute the suit…The implication of an unincorporated Trust is that it can only own property, enter into contracts or do any other thing in the name of its trustees but not in its own name. An unincorporated Trust does not have a separate legal existence from its trustees. With respect to institution of suits, an unincorporated Trust can only institute a suit through its trustees and/or recognized ocials. Indeed, that is the position that the court took in the case of Erick Lumosi Asiligwa & another v Peter Felix Baumartner (2011) eKLR…” 51. In my humble view, since the plainti was unincorporated, it ought to have led the suit in the name of the trustees rather than in its own name. This is because at the time of ling the suit, it was not a body corporate, with perpetual succession, capable of suing and being sued. The fact of its registration https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18215/eng@2025-12-03 8

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after commencement of the suit did not and could not in any way sanitize or cure the illegality arising from that technicality because the law does not operate retrospectively. Whether the plainti has proved its case on a balance of probabilities? 52. Having found that the plainti improperly led the suit, I nd that the interest of justice in this matter dictate that the suit be determined on its merits. I say so because regardless of the technicality, as far as locus standi is concerned, there are instances where parties should not be driven away from the seat of justice but be heard on the merits. This is one of those suits that falls on that wayside. I will therefore proceed to establish whether the plainti had a merited claim. 53. The crux of this matter/ suit is premised on the trust deed adduced by both parties in evidence. As per clause A of the trust deed: “ pursuant to an agreement dated 13 February 2014 (the licence) entered between the ACS and Tullow, it was agreed that a charitable trust was to be set up on behalf of the Community (dened below) so as to receive funding from a portion of the revenue from bed occupancy from the Integrated Operating Base (dened below) and service charge derived from rental payments made by the Lessee (and its sub-lessee or licensees) for occupation of space on the land (dened below) to support community projects in the Trust Area (dened below). The relevant extracts of the Agreement, providing for the creation of the Trust are captured as Annex 1 to this Deed.” 54. From the wording of the stated clause, the trust deed was premeditated by agreement dated 13/02/2014 between the defendant and Tullow Kenya B.V. Limited. This was a licence agreement entered between the parties where the defendant was to ensure that provision of accommodation is made to Tullow Kenya B.V. Limited during the pendency of their stay at the Lokichar region. This is where the Kapese Community, the members of the plainti resided. The agreement by and large covered the subsisting relationship of licensor and licensee setting out the necessary modalities that would sustain their relationship insofar as it existed. 55. Withal, from the agreement, Tullow Kenya B.V. was obligated to set up operations in the Lokichar region of northern Kenya and to generate long term opportunities and benets for local communities. The idea was to set up an Integrated Operations Base (IOB) in the Kapese sub-division of Lokichar. It was further agreed that the IOB would consist of a secure facility containing accommodation, a transport hub for both land and air, storage, work facilities, oce space and fuel supply. 56. Another germane clause was to be found in clause 5.4 which provided that the parties were to work together to establish and operate the Trust Fund designed for the benet of the Community Trust (Kapese Conservancy). That the Trust Fund was to be funded from bed occupancy fees from the IOB and service charge derived from the rental payments. Other than that, there was no obligation to contribute any moneys to the Trust Fund. The bed night fee per occupant per night was charged at USD 5.00 and an additional levy rent at 5% to both be withheld by Tullow Kenya B.V. Kenya for onward transmission to the Trust Fund. 57. Another agreement made was that the defendant was to pay a xed rate of USD 0.25 per square meter to the headlessor (the Turkana County Government) for the duration of Tullow B.V. Kenya Limited’s occupation of the premises. Where an amount was agreed at a lower sum, the balance of the dierence was to be paid into the Trust Fund. 58. It was on the basis of that agreement, and in particular the clauses touching on the Kapese Community, that the trust deed established the Kapese Community Charitable Trust. In clause 2, the trustees https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18215/eng@2025-12-03 9

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were declared a non-prot and non-political forum for the promotion of education training including vocational training and generally capacity development and provision of education bursaries. 59. Another expectation that was derived from the trust was the alleviation of poverty for the community through various activities such as access to improved amenities, social services, access to water solutions, provision of employment and establishment of community-based enterprises. Another expectation was for the promotion of improved livelihoods for the community through capacity development in the area of health and the promotion of access to health services. 60. According to the plainti witnesses, the charitable trust to be set up on behalf of the plainti was designed to receive a portion of the funding from the revenue of bed occupancy from the Integrated Operations Base and service charge derived from rental payments by the defendant. This was intended to support community projects in the trust area as the property leased was community land. 61. From their calculations, Tullow Kenya B.V. Limited was required to pay an annual rent of USD 1,933,872.00 for the rst three (3) years of the license agreement and subsequently, an annual rent of USD 996,936.00 for the remaining term. Tullow Kenya B.V. Limited, it was testied, made all remittances to the plainti as per the lease agreement for 5% bed levies for the period 2014 to 2021. However, the defendant failed to honor its obligations by failing to remit 5% of revenue as land rent to the plainti since 2014 to date. They were emphatic that the defendant received the sum of USD 7,735,448.00 from Tullow Kenya B.V. Limited as rent dutifully paid for the period January 2014 to January 2019. However, the defendant had not remitted the 5% contribution translating to USD 386,774.40 (Kshs. 46,412,928.00). 62. In addition, the defendant received USD 3,722,889.00 as outstanding arears for the period February 2019 to the expiry of the lease agreement. However, the 5% remittance of USD 18,614,445.45 (Kshs. 22,337,334.54) was not paid to the plainti; contrary to the agreement dated 13/02/2014 and the trust deed. According to PW2 further, the plainti received Kshs. 156 million from Tullow Kenya B.V. Limited utilized for education, health, water and community management training, leaving a balance of Kshs. 32 million. The said Tullow Kenya B.V. Limited also paid service charge to the plainti. 63. However, from the evidence adduced, it is my nding that the plaintis’ witnesses, in particular PW1 and PW2, appeared to have preferred to see the money exchange hands tangibly. That is why they made the claims as they stated. Unfortunately, the sums arrived at were not backed by any documentary evidence. Surely if they indeed had cause to show that they were owed, nothing would have been easier than for them to document the evidence in the form of nancial statements, demand letters and statements of accounts. They just swung those allegations by word of mouth in court bereft of bearing in mind that he who alleges must prove. They ought to have documentarily demonstrated how they arrived at those gures and what the justication for that sum sought was. 64. Secondly, as stated earlier, I am of the considered view that it is apparent from the star witnesses of the plainti, that is PW1 and PW2, that the money ought to have been tangibly given to the members of the plainti in fulllment of the trust deed. However, a cursory perusal of the trust deed, read together with the licence agreement, reveal that a charitable trust was set up to give providence to the community at large. It was not indicative from the wordings of the two documents how the funds were to be utilized with specicity. 65. From the trust deed, a portion of the funding received from the Integrated Operating Base and service charge derived from rental payments made by the lessee for occupation of space on the land were designed to support community projects in the trust area. Flowing from that agreement, the trust deed provided that the funds injected in the Trust Deed were intended to be utilized for the alleviation of poverty for the community through various activities such as access to improved amenities, social https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18215/eng@2025-12-03 10

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services, access to water solutions, provision of employment, the establishment of community-based enterprises as well as the promotion of improved livelihoods for the community through capacity development in the area of health and the promotion of access to health services. 66. PW2 also admitted that from the minutes referred to in page 59 of the defendant’s documents, the plainti-members applauded the work of the defendant. That alone proves that the defendant discharged its mandate in line with the trust deed and the licence agreement. It is further fortied by the evidence of DW1. He explained that following the failure by the necessary parties in registering the trust, that the defendant paid an ex-gratia amount totaling Kshs. 169,287,433.57 towards Kapese community projects. PW2 was among the people who were aware of the existence and were beneciaries of these projects. 67. The projects, DW1 continued, and corroborated by DW4, covered the elds of education, bursaries, water, health services, development of small business enterprises and emergency between 2015 and 2019. Those payments were calculated on information received from Tullow Kenya B.V. on bed occupancy and paid out in accordance with gures received from Tullow Kenya B.V. This evidence was supported by the schedule of payments made towards the Kapese Community projects marked DExh5, a statements of account showing disbursements of funds for community projects marked DExh8 and account statements marked DExh9 – DExh21. 68. According to DW4, these projects were water related projects, bursaries and small-scale groups. He recalled that the committee advertised for bursaries for those interested before making payments after approving those that have applied for them. At the end of the project a sum of over Kshs. 100,000,000.00 had been expended. DW4 was emphatic that the community was very pleased with the projects the defendant had set up and there were no complaints lodged against them. 69. It was recalled that during the pendency of the licence agreement, Tullow Kenya B.V. did not make all the remittances to the for the period 2014 to 2021. This was evidenced in the letter dated 31/08/2016 marked DExh6 and the suit le in respect of Kitale ELC No. 17 of 2020 of which PW4 produced its original le in evidence in this matter. One wonders why the plainti never enjoined this party into the proceedings especially taking into account the dispute herein. It is as if they elected to vindicate them when enjoining them in these proceedings may have shed further light into the facts giving rise to the dispute before me. 70. In a meetings held on 29/01/2016 and 04/04/2017, whose minutes were compiled by DW2, the members of the plainti participated in the meetings. The minutes revealed the projects being carried out by the defendant in the area. This was further underpinned by the evidence of DW3 who recalled writing a letter dated 08/02/2016 marked DExh4 to the defendant. He conrmed that the community held an agreement with the defendant to share prots. It therefore could not be substantiated by the plainti that they were not aware of the projects taking place. In fact, in the minutes held on 04/04/2017, under minute 03/04/2017 it was captured as follows: “ the members applauded the ACS for continuous support in fees supplement to students from poor families and Kapese water project which as (sic) seen hundreds of the community members beneting from it.” 71. Further supporting the defendant’s evidence was DW3 and DW4 who recalled that Kshs. 31,000,000.00 was invested in boreholes. DW3 also chaired the meeting held on 29/01/2016 involving the implementation of the projects. Money was also allocated to bursaries and relief. More money was injected into the community in 2017. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18215/eng@2025-12-03 11

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72. Ultimately, I nd that the defendant not only gave viva voce evidence but supported the same with documentary evidence. I nd that they ably discharged their evidentiary burden proving that indeed the licence agreement and the contents of the trust deed were reective of the projects that they had carried out and were well known to the community. When the evidentiary burden was proved, it shifted to the plainti to disprove the same. However, that did not happen. 73. Finally, it is also instructive to note that DW1 and DW4 both conrmed armatively that the licence agreement 13/02/2014, expired on 31/01/2019. DW1 recalled that it sought extension of the contract with Tullow Kenya B.V. but that did not materialize. From the wordings of the licence agreement, the trust deed was only inoculated with life the moment the defendant and Tullow B.V. Kenya were in an existing agreement. So that the moment the licence agreement expired and ceased to exist, there was no basis for the sustenance of the trust deed. After all, the trust fund was dened in the agreement to mean: “ the charitable Trust to be set up by the Lessor and the Lessee on behalf of the Community that will receive a portion of the revenue from bed occupancy on the IOB and rental payments made by the Lessee and the sub-lessee or licensees for occupying space on the land.” 74. Looking at the cause and eect of that agreement, I nd that this court can only interpret to mean that nothing could be claimed as of 2019. The fact of expiration was also conrmed in the letter dated 08/01/2019 [DExh7] by the defendant’s chairman to Tullow B.V. Kenya Limited. In response, Tullow B.V. Kenya Limited wrote to the defendant on 30/01/2019 [DExh7]that indeed the agreement to licence was to expire on 31/01/2019 and were not interested in a renewal. After all, it is settled in our jurisdiction that a court cannot rewrite a contract. This was the holding of Onyiengo, J. in the case of City Classic Enterprises Limited & 3 others vs. County Government of Wajir & 2 others [2025] KEHC 15756 (KLR) that held: “ …See the case of National Bank of Kenya Ltd V. Pipeplastic Samkolit (K) Ltd & Another (2002) 2 EA 507 where the court held that it is not within the province of the court to vary contracts duly executed between parties. The court stated that a court of law cannot rewrite a contract between the parties. The parties are bound by their terms of contract unless coercion, fraud or undue inuence is pleaded and proved. 63. Further in the case of Fina Bank Ltd V. Spares and Industries Ltd (2000) 1 EA 52 Shah J.A observed that save for those special cases where equity might be prepared to relief a party from a bad bargain, it is ordinarily not a function of equity to allow a party to escape from a bad bargain.” 75. I am therefore persuaded by the defendant’s contention that the claim for Kshs. 22,337,334.54 for the period February 2019 to the expiration of the lease was untenable as the licence agreement expired on 31/01/2019. That claim lacks basis. 76. PW2 testied that the defendant once met them at a hotel in Nairobi. In that meeting, the defendant’s representatives informed them that they had no money to give them as they spent it on paying bills, statutory deductions and paying directors. The defendant’s representative thus oered to give them Kshs. 2 million. However, the plainti members declined that oer hence the suit. 77. The plainti’s evidence and claim revolved around the parameters of a breach of contract emanating from a trust relationship between it and the defendant. The alleged breach was based on the relationship the Defendant had with Tullow B.V. Kenya. In the law of contract, the doctrine of privity of contract controls transactions and relationships of parties to agreements. Only parties to https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18215/eng@2025-12-03 12

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a contract can sue on, to enforce, it. Thus, in Aineah Liluyani Njirah v Agha Khan Health Services (Civil Application 194 of 2009) [2013] KECA 481 (KLR) (Civ) (12 July 2013) (Ruling), the Court of Appeal rendered itself as follows: “ Privity of contract is a long-established part of the law of contract. In the earlier part of the last century, it was identied by Viscount Haldane LC as one of the fundamental principles of the English Contract Law. See Dunlop Pneumonic Tyre v. Selfridge and Co. Ltd. The essence of the privity rule is that only the people who actually negotiated a contract (who are privy to it) are entitled to enforce its terms. Even if a third party is mentioned in the contract, he cannot enforce any of its terms nor have any burdens from that contract enforced against him.” 78. Also, in Savings & Loan (K) Limited v Kanyenje Karangaita Gakombe & another [2015] KECA 784 (KLR) the same court held as follows: “ In its classical rendering, the doctrine of privity of contract postulates that a contract cannot confer rights or impose obligations on any person other than the parties to the contract. Accordingly, a contract cannot be enforced either by or against a third party.” 79. Additionally, in Dunlop Pneumatic Tyre Co Ltd V Selfridge & Co Ltd [1915] AC 847, Lord Haldane, LC expressed the principle as follows: “ My Lords, in the law of England certain principles are fundamental. One is that only a person who is a party to a contract can sue on it.”” 80. Thus, it can be stated as it was, in Agricultural Finance Corporation V Lengetia Ltd, where Hancox, JA quoting with approval from Halsbury’s Laws of England, 3rd Edition, Volume 8, paragraph 110 reiterated it as follows: “ As a general rule a contract aects only the parties to it, it cannot be enforced by or against a person who is not a party, even if the contract is made for his benet and purports to give him the right to sue or to make him liable upon it. The fact that a person who is a stranger to the consideration of a contract stands in such near relationship to the party from whom the consideration proceeds that he may be considered a party to the consideration does not entitle him to sue upon the contract.” 81. The doctrine has evoked a lot of criticism to the extent that it is viewed generally, that where parties agree expressly in a contract between them that it is for the benet of a third party, that party can sue on it, based on the doctrine of freedom to contract. Thus, in Darlington Bourough Council V Witshire Northern Ltd [1995] 1 WLR 68 Lord Steyn expressed himself valiantly in the following terms: “ The case for recognizing a contract for the benet of a third party is simple and straightforward. The autonomy of the will of the parties should be respected. The law of contract should give eect to the reasonable expectations of contracting parties. Principle certainly requires that a burden should not be imposed on a third party without his consent. But there is no doctrinal, logical or policy reason why the law should deny eectiveness to a contract for the benet of a third party where that is the expressed intention of the parties. Moreover, often the parties, and particularly third parties, organize their aairs on the faith https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18215/eng@2025-12-03 13

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of the contract. They rely on the contract. It is therefore unjust to deny eectiveness to such a contract.” 82. In the instant suit, this Court longed to see a clause in any agreement between the Defendant and Tullow Kenya B.V. which would clothe the Plainti with the power to enforce the benet as a third party to the said contract. However, the plainti failed to demonstrate that on a preponderance of the evidence adduced, the defendant ought to be held culpable under the said contract. No particulars of breach were established for the reasons exposited in this judgment above herein. 83. The upshot of my above ndings is that the plainti’s suit is not only incurably incompetent but also unmerited. Accordingly, I am persuaded to nd that it lacks merit. It is hereby dismissed with costs to the Defendant. JUDGMENT DATED, SIGNED AND DELIVERED VIA ELECTRONIC MAIL THROUGH THE TEAMS PLATFORM THIS 03RD DAY OF DECEMBER 2025. HON. DR. IUR FRED NYAGAKA JUDGE From 03:07 Pm, in the presence of, Ms. Chebet for Yego Advocate for the Plainti Mr. Ned Chemoiwa Advocate for the Defendant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18215/eng@2025-12-03 14

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