Ngaruiya & 8 others v Haraka Farmers Ltd; Mbugua & 78 others (Interested Parties) (Land Case 161 of 2013) [2022] KEELC 2609 (KLR)
The bottom line
#Kenya's Nakuru Environment and Land Court cancelled titles and a resurvey map that threatened to displace members settled on Haraka Farmers land since 1977.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to determine this matter
- 2.Whether the defendant company is in existence
- 3.Whether or not the meeting and resolution recommending a resurvey of the farm was illegal
- 4.Whether the plaintiffs are adversely affected by the said resurvey
- 5.Whether the interested parties' titles ought to be cancelled
- 6.Who ought to bear the costs of the suit
Key legal issues
#Jurisdiction of the ELC over a dispute involving company resolutions
The court has jurisdiction because the predominant subject matter is land, being use, occupation of and title to land under article 162(2)(b) and section 13 of the ELC Act.
The court applied a predominance test: although the impugned meeting concerns company administration, the ultimate relief - declarations against the RIM, cancellation of titles and occupation of land - is land-based. Titles would have to be declared illegal if the claim succeeded and a new RIM registered. The company meeting issue was merely a guiding light to the land dispute.
Existence of the defendant company
The company exists; gazette notice No 12847 of October 22, 2010 validly reinstated it, and the interested parties failed to prove dissolution of the defendant company.
The interested parties asserted dissolution by gazette notice No 10534 but did not produce it in evidence, and the notice did not attribute a company number to Haraka Farmers Limited. The registrar had reinstated the company by corrigendum and no one objected. The court departed from Kimaru J in Jackson Wachuga, holding the registrar may reinstate a company he did not dissolve suo motu. The burden of proving non-existence lay on the interested parties.
Legality of the meeting and resolution for resurvey
The meeting and resolution recommending resurvey were illegal and null and void for non-compliance with the Companies Act.
There was proof of an initial 1977 survey and settlement, and of a second subdivision after membership inexplicably grew from 320 to 380. The impugned meeting was orchestrated by non-members and infiltrated by impostors; the requirements for company meetings and resolutions (ss 131, 132, 133, 140, 142 of the repealed Companies Act) were not demonstrated. The burden shifted to the defendant and interested parties, who failed to discharge it.
Validity of the interested parties' titles
The titles are invalid, null and void because they originate from a flawed process, and were cancelled.
Although sections 25 and 26 of the Land Registration Act protect registered titles, section 26(1)(b) permits challenge where a certificate is acquired illegally, unprocedurally or through a corrupt scheme. The interested parties did not demonstrate they were original members, held shares, or balloted for their plots, and could not account for why their titles overlap developed lands. Following Munyu Maina v Hiram Gathiha Maina, they failed to prove the legality of their acquisition.
Whether plaintiffs are adversely affected by the resurvey
The plaintiffs and other members would be adversely and considerably affected by implementation of the RIM.
The Wahome Werugia surveyor's report showed the RIM ignored members' developments, placed agricultural plots over villages, subdivided communal lands, schools and dams, allocated the cemetery, and contained unnumbered plots. The interested parties' own claim that the plaintiffs occupy their land confirmed the disturbance. Members settled since the 1970s would be uprooted from long-developed parcels.
Legal principles established
#- A company wrongly struck off the register may be reinstated by the registrar of companies where he did not act suo motu in dissolving it and sufficient reason exists; reinstatement by corrigendum is not necessarily a nullity.
- A registered proprietor whose root of title is under challenge must prove the legality of how the title was acquired, beyond merely producing the title instrument.
- Where a plaintiff shows a resurvey of company land was orchestrated without compliance with company law, the burden shifts to the defendant and interested parties to prove compliance.
Court orders
#- 1.Declaration that the decision to resurvey and the resultant resurvey of LR Nos 6569/5 (Haraka A farm) and LR No 7819 (Haraka B farm) yielding the RIM (P Exh 2) contrary to the 1977 demarcation map are illegal and a nullity
- 2.Declaration that the plaintiffs and all original members are entitled to remain in occupation of the parcels they occupy under the 1977 map
- 3.Declaration that the RIM produced as P Exh 2 is inapplicable and invalid in so far as it contradicts the 1977 map or adversely affects the plaintiffs' and original members' parcels
- 4.Order cancelling the RIM produced as P Exh 2 and barring its use in any further issuance of title documents
- 5.Order that title deeds issued on the basis of the RIM cannot defeat the interests of members settled by the company under the 1977 survey
- 6.Declaration that title deeds issued on the basis of the RIM are illegal, null and void in so far as they override or overlap parcels created under the 1977 survey, and cancellation of such title deeds
- 7.Order that the director of surveys prepare a fresh RIM adopting the 1977 demarcation so as not to disturb members' developments
- 8.Order that the chief land registrar issue fresh titles only in accordance with the fresh RIM
- 9.Perpetual injunction restraining the defendant and interested parties from evicting, occupying, trespassing on or interfering with the lands occupied by the plaintiffs, save to implement the fresh RIM order
- 10.Order that the director of surveys restore all public amenity and riparian parcels reserved under the 1977 demarcation and mark them as such
- 11.Order that the orders extend to original settled members' successors or transferees
- 12.Costs of the suit to be borne by the interested parties
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and section 13 of the Environment and Land Court Act 2012
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.
this court has no difficulty in finding and declaring illegal and null and void the meeting and the resolution to resurvey the land contrary to the manner in which the farm planning unit of the ministry of agriculture had planned it in 1977
when a registered proprietor's root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership.
the registrar has power to reinstate a name into the register where there is sufficient reason to do so and he does not have to wait until an order of court is issued.
In the circumstances of this case, I cannot hold that the titles held by the interested parties to be valid as they flow from a flawed process. They are null and void and they must be cancelled as should be the RIM through which they were created.
A declaration is hereby issued declaring that the plaintiffs and all original members of the defendant are entitled to remain in occupation of the land parcels they have developed and on which they were settled by the defendant company pursuant to the 1977 map prepared by the ministry of agriculture's farm mapping unit;
The costs of the instant suit shall be borne by the interested parties.
Issues in the judgment
#The plaint pleads the impugned informal meeting occurred in February 1972, but the plaintiff's submissions and the evidence place the impugned meeting convened by the provincial administration in 1992, and the judgment is decided on the 1992 meeting.
The case number of the suit itself is not stated anywhere in the judgment; only the leave application (Nakuru HC Misc Civil Appl 137 of 2007) is identified.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngaruiya & 8 others v Haraka Farmers Ltd; Mbugua & 78 others (Interested Parties) (Land Case 161 of 2013) [2022] KEELC 2609 (KLR)", Case Analysis (2022). Nakuru High Court Environment and Land Court (number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2609/eng@2022-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.