Kogo Flats Ltd v Cherunya & another (Civil Appeal 41 of 2020) (21 November 2025) (Reasons) [2025] KECA 1987 (KLR)
The bottom line
#The Court of Appeal dismissed Kogo Flats' appeal, cancelling its Eldoret land title because the company could not prove it had bought the property in good faith.
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 suit was competent in law without a board resolution authorising the company to institute it
- 2.Whether the appellant's title to Eldoret Municipality Block 15/1857 was lawfully and procedurally acquired
- 3.Whether the respondents' counterclaim for cancellation of title and rectification of the register was proved
Key legal issues
#Competence of a suit filed without a board resolution
Although lack of board resolution was not pleaded, the trial court could determine it; but on the merits, the trial Judge erred in holding the suit irregular for lacking a board resolution, as the Bugerere principle has been overruled and an authorised director may act for the company.
The Court relied on Odd Jobs v Mubia for the proposition that a court may frame issues not covered by pleadings where necessary, and on Wanyiri Kihoro v Konahauthi Ltd noting that the Bugerere Coffee Growers requirement of a recorded board resolution was overruled in Uganda. It concluded the suit was not irregularly before the court for want of a board resolution, but the point was central to competence and could be examined though unpleaded.
Whether the appellant was a bona fide purchaser for value
The appellant failed to satisfy the strictures for a bona fide purchaser defence: it did not prove the vendor's title, conducted no due diligence, and did not call the vendor to testify.
Applying Mbugua v Njuguna's seven strictures and Munyu Maina v Hiram Gathiha Maina on root of title, the Court held that dangling the certificate of lease was insufficient where the root of title was challenged. The appellant produced no evidence of Philip Koech's title, no history of the property, and did not call the vendor, so the defence of bona fide purchase could not stand and the title was not procedurally acquired.
Whether the respondents proved their counterclaim for rectification
The respondents proved their counterclaim to the required standard by documentary evidence tracing the suit land to the original title L.R. No. 8148 in the name of the late William Kiptalam Cherunya.
The respondents produced the original title deed to the 617-acre parcel which had never been surrendered, survey evidence that Block 15/1857 irregularly overlapped the family's 217 acres, and testimony from the Directorate of Surveys that the title had been irregularly created and recommended for expungement. This chronological and documentary account discharged the burden of proof on the counterclaim.
Legal principles established
#- A company need not produce a board resolution to institute proceedings; a director authorised to act on its behalf has the powers of the board, and a trial court erred in striking out a suit for want of a board resolution.
- Where a registered proprietor's root of title is under challenge, it is not enough to produce the title instrument; the proprietor must prove the legality of the acquisition, and a bona fide purchaser defence fails absent due diligence and proof of the vendor's title.
- A first appellate court must re-evaluate the evidence, assess it and reach its own conclusions while making due allowance for not having seen or heard the witnesses.
Court orders
#- 1.The appeal was dismissed on the spot at the plenary hearing on 11th June 2025
- 2.No orders as to costs, since the respondent did not file submissions or attend the hearing
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Eldoret
- ELC No. 41 of 2014
- Jurisdiction invoked
- First appeal under Rule 31(1)(a) of the Court of Appeal Rules, 2022
Relief refused
#The appellant's appeal against the judgment of Odeny J dismissing its claim and allowing the respondents' counterclaim
The appeal lacked merit; the appellant failed to prove it was a bona fide purchaser for value and did not conduct due diligence
Costs
No orders as to costs - costs awarded to the respondents by the trial court stand; the Court of Appeal gave no orders as to costs on the appeal since the respondent did not file submissions or attend the hearing.
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.
From the foregoing cases, it is evident that the trial Judge erred in holding that this suit was irregularly before the court, for lacking the backing of a board resolution.
when a registered proprietor's root of title is under challenge, it is not suficient to dangle the instrument of title as proof of ownership.
Upon hearing the appeal on 11th June 2025, we found that it was lacking in merit for the reasons stated above, and we dismissed it on the spot. We gave no orders as to costs since the respondent did not file any submissions or attend the hearing.
Issues in the judgment
#Internal inconsistency on costs: the opening paragraph states costs were awarded to the respondent on dismissal, but the concluding orders state no orders as to costs were made.
The trial court's rectification order as described refers to parcel 'Eldoret Municipality Block 159' which appears inconsistent with the parcel in dispute (Eldoret Municipality Block 15/1857).
The memorandum of appeal is described as belonging to 'he' although the appellant is a company.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kogo Flats Ltd v Cherunya & another (Civil Appeal 41 of 2020) (21 November 2025) (Reasons) [2025] KECA 1987 (KLR)", Case Analysis (2025). Civil Appeal 41 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1987/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.