Malakwen & 2 others (Suing as officials for and on behalf of Sergoit Polo Club) v Tambach Moiben TTC & 5 others (Tribunal Appeal E100 of 2025) [2026] KELAT 22 (KLR) (23 April 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE LAND ACQUISITION TRIBUNAL AT NAIROBI CASE NO. TRLAP/E100/2025** **JOSEPH MALAKWEN PIUS KIPKONGA KIPTOO** **BRUCE MARK KIPROP KIBOGY** **(*SUING AS OFFICIALS FOR AND ON BEHALF OF SERGOIT POLO CLUB*) PLAINTIFFS** **VERSUS** **TAMBACH/MOIBEN TTC 1ST DEFENDANT** **TACHASIS GIRLS SECONDARY SCHOOL 2ND DEFENDANT** **MINISTRY OF EDUCATION 3RD DEFENDANT** **NATIONAL LAND COMMISSION 4TH DEFENDANT** **MINISTRY OF LANDS, HOUSING & URBAN DEVELOPMENT 5TH DEFENDANT** **THE HONOURABLE ATTORNEY GENERAL 6TH DEFENDANT** **JUDGEMENT** 1. **BACKGROUND** 2. This matter relates to a claim for compensation for the alleged acquisition of properties known as L.R. NO. 3769/1 (I.R. NO. 4600) and L.R. NO. 5734/1 (I.R. 4664) (the suit properties) located in Uasin Gishu County. The Plaintiffs have approached the Tribunal, through a Plaint dated 16 September 2025, claiming that Sergoit Polo Club was not compensated for the acquisition of the suit properties. 3. The Plaintiffs, who have instituted the instant suit as the trustees of the Sergoit Polo Club (“the Club”), aver that the suit properties were, at all material times, registered in the name of the Registered Trustees of the Club and despite their acquisition, the Club has not been compensated. 4. In support of the Claim, the Plaintiffs rely on documentary evidence including a Certificate of Exemption from Registration dated 18 July 1962 confirming the registration of the Club and a letter dated 13 February 2026 from the Registrar of Societies confirming the three as the Chairman, Secretary and Treasurer to the Society. 5. Further, in support of their Claim on proprietorship, the Plaintiffs have produced Certificates of Title for the Suit Properties, each for a term of 999 years from 9 September 1910 to 9 September 2909 (commuted to 99 years) and further, a Decree of the *Eldoret Chief Magistrate’s Court Civil Suit No. 112 of 1998 – Sergoit Polo Club vs Silah Tiren & Another* dated 13 March 2001 confirming the Club’s proprietorship over the suit property at the time. 6. The Plaintiffs maintain that the said compulsory acquisition process was undertaken in violation of due process, particularly that, the requisite Gazette Notices were not served on the Club, nor was there any consultation or payment of the requisite compensation despite several demands for the same by the Club. 7. In further support of their case, the Plaintiffs have produced a ground status reports dated 29th July 2021, from the National Land Commission’s County Co-ordinator – Uasin Gishu, confirming that the suit properties were leased to the Club, and which leases both expired on 9 September 2009. The said Reports further aver that the Tambach Teachers Training College and the Tachasis Primary & Secondary Schools are constructed on the suit properties. 8. Further the Plaintiffs have produced a letter dated 9 October 2024 from the 4th Respondent and addressed to the Principal Secretary – State Department for Technical, Vocational Education & Training which notes that the 4th Respondent’s records show that the suit properties were never subjected to compulsory acquisition and that there was no formal request made to the 4th Respondent to have the suit properties compulsorily acquired. Consequently, the said letter requested information as to the acquisition that was undertaken to convert the suit properties to public land. 1. As a result of the matters complained of, the Plaintiffs claim compensation of the sum of Kshs. 290,763,838.00 which they aver is the current valuation of the suit property. they also claim compensation for loss of use of land for more than 20 years being Kshs. 87,229,151.40 and disturbance allowance of kshs. 43,614,575.70 making a total of Kshs. 424,607,565.10. the Plaintiffs, therefore, pray for the following reliefs against the Defendants, jointly: 1. An order be issued that the Plaintiffs are entitled to compensation by the Defendants for acquisition of the suit properties; 2. An order that the Plaintiffs’ rights enshrined under Article 35, 40(3), (4) and 47(2) of the Constitution of Kenya, 2010, Fair Administrative Actions Act and Part VIII of the Land Act 2012 Section 111, 122 & 123 as amended in the Land Value (Amendment) Act 2019 have been contravened by the Respondents’ actions of taking over its land without compensation. 3. Orders against the Defendants to compel them to accept the Plaintiffs’ assessment for purposes of effecting compensation for the acquired parcels of land. 4. An order that the Plaintiffs are entitled to compensation for the commensurate value of the land acquired by the Defendants and compensation for loss of use of the suit land for a period of over 20 years plus interest until payment in full. 5. Costs of the suit. 2. The 1st, 2nd, 3rd, 5th and 6th Respondents through their joint Statement of Defence contend that the Plaintiffs are not the officials of the Club. In support of the assertion, the 1st, 2nd, 3rd, 5th and 6th Respondents have produced a letter dated 10 November 2025 from the Registrar of Societies stating that as at the date of the letter, the trustees of the Club are three different individuals. The 1st, 2nd, 3rd, 5th and 6th Respondents, therefore, impugn the Plaintiffs’ standing in filing this suit. 3. The 1st, 2nd, 3rd, 5th and 6th Respondents further assert that the Club has never acquired any interest over the suit properties and that it has never taken possession and/or accrued any form of proprietary interests in the suit properties. 4. It is the 1st, 2nd, 3rd, 5th and 6th Respondents’ case, therefore, that no compulsory acquisition process was undertaken nor could have been undertaken as the Club had no proprietary interests in the suit properties. Consequently, the Club is not entitled to any compensation sums. 5. Further to the above, the 1st, 2nd, 3rd, 5th and 6th Respondents have filed a Preliminary Objection challenging the jurisdiction of this Tribunal to hear and determine this matter on the grounds that the instant Claim raises issues of ownership and whether or not there was compulsory acquisition at all, which they contend this Tribunal has no jurisdiction to adjudicate on. 6. The 4th Respondent contends that the suit, as framed, does not disclose any cause of action. Further, the 4th Respondent avers that, at the time of the purported compulsory acquisition, the 4th Respondent was not in existence and therefore did not undertake the purported compulsory acquisition process. The 4th Respondent avers that, having neither been in existence nor undertaken the alleged acquisition, it has no documents and/or records pertaining to the subject compulsory acquisition process. Further to*,* the 4th Respondent avers that it has, unsuccessfully, sought information, records and evidence from the Ministry of Education and the County Government of Uasin Gishu regarding the alleged acquisition. 1. **ANALYSIS AND DETERMINATION** 2. The Respondents have raised two preliminary issues which take precedence over the other issues for determination herein. First, the Respondents contest this Tribunal’s jurisdiction to determine the dispute herein arguing that the same is on ownership and the Tribunal is not the appropriate forum. Second, the Respondents have contested the Plaintiffs’ standing by averring that they are not the registered officials of the Club. 1. On jurisdiction, Section 133C of the Land Act provides as follows: *Jurisdiction of the Tribunal* 1. *The Tribunal has jurisdiction to hear and determine appeals from the decision of the Commission in matters relating to the process of compulsory acquisition of land.* 2. *A person dissatisfied with the decision of the Commission may, within thirty days, apply to the Tribunal in the prescribed manner.* 3. *Within sixty days after the filing of an application under this Part, the Tribunal shall hear and determine the application.* 4. *Despite subsection (3), the Tribunal may, for sufficient cause shown, extend the time prescribed for doing any act or taking any proceedings before it upon such terms and conditions, if any, as may appear just and expedient.* 5. *If, on an application to the Tribunal, the form or sum which in the opinion of the Tribunal ought to have been awarded as compensation is greater than the sum which the Commission did award, the Tribunal may direct that the Commission shall pay interest on the excess at the prescribed rate.* 6. *Despite the provisions of sections 127, 128 and 148 (5), a matter relating to compulsory acquisition of land or creation of wayleaves, easements and public right of way shall, in the first instance, be referred to the Tribunal.* 7. *Subject to this Act, the Tribunal has power to confirm, vary or quash the decision of the Commission.* 8. *The Tribunal may, in matters relating to compulsory acquisition of land, hear and determine a complaint before it arising under Articles 23 (2) and 47 (3) of the Constitution, using the framework set out under the Fair Administrative Act or any other law.* # In the case of *Tom Mwachiti Mwero (Suing as a representative of the Estate of* ***Fredrick Johnson Mwachiti (Deceased) vs. Kenya Railways Corporation and*** ***National land Commission (TRLAP/E001/2023)*** this tribunal held as follows in regard to its jurisdiction especially under Section 133C (8): *The language used in the Land Act is a “matter relating to” compulsory acquisition of land in relation to the Tribunal’s jurisdiction under Sections 133C (6) and (8). The Oxford Learner’s Dictionary (online edition) defines “related” as “connected with something.” This Tribunal’s jurisdiction, therefore, extends to any matter that is connected to the process of compulsory acquisition.*1 1. The instant complaint relates to an allegation that the Respondent have taken possession of properties belonging to the plaintiffs without following the procedure laid under the law for compulsory acquisition and without paying compensation. In addition to our jurisdiction under Section 133C(1) which is appellate in nature, this Tribunal has a sui generis jurisdiction that covers complaints on any matter relating to compulsory acquisition of land. In our view, such complaints may include complaints that an affected party’s land has been taken without the due process laid under the law for compulsory acquisition of land. We are, therefore, satisfied that the instant complaint is properly before us. 2. On the question whether the plaintiffs have the requisite standing in filing this suit on behalf of the Club, the Plaintiffs aver that they are the registered trustees of the Club and in this regard they rely on the letter dated 17 June 2022 and the letter dated 13 February 2026. In both letters, the Plaintiffs are identified as the officials of “Sergoit Polo Club” by the office of the registrar of societies. However, the 1st, 2nd, 3rd, 5th and 6th Respondents rely on a letter from the Business Registration Services dated 10 November 2025 which identifies the registered trustees as *Kiptoo Chemweno, Joseph Cherono and Joseph K. Chemweno.* 1 Para. 16 1. The conflicting documents relied on by the Plaintiffs and the 1st, 2nd, 3rd, 5th and 6th Respondents bring to the fore the question of who has the legal capacity to institute legal proceedings for an on behalf of the Club. The Plaintiffs have avoided addressing this matter in their submissions despite the same having been raised as a preliminary point by the 1st, 2nd, 3rd, 5th and 6th Respondents. The 1st, 2nd, 3rd, 5th and 6th Respondents did not file any submissions either, further leaving us in the dark. However, it appears to us that the two sets of documents filed by the parties are uncontroverted in respect of what they speak to. Whereas the Plaintiffs, through their letters, have demonstrated that they are the officials of the Club, the letter from the Business Registration Services is uncontroverted that they are not the trustees. The question then is whether as officials they have standing to bring a claim on behalf of the Club which is a registered society from the uncontroverted evidence presented. 2. We reiterate our holding in [***Sergoit Polo Club v Tambach/Moiben TTC & 4 others***](https://new.kenyalaw.org/akn/ke/judgment/kelat/2025/167/eng%402025-05-05) [***[2025] KELAT 167 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kelat/2025/167/eng%402025-05-05) that *“Under the Societies Act, a society is not a legal person* *with capacity to sue or be sued. A society can only be sued through its registered officials as laid down and affirmed in the case of* ***Islamia Madrassa Society vs Zafar Niaz & 8*** # *Others [2021] eKLR and in Trustees Kenya Redeemed Church & Another vs Samuel* ***M’Obuya [2011] eKLR****.”2* 1. When it comes to which officials have the legal capacity to sue or be sued on behalf of a society, club officials can sue on behalf of a club if they have been authorised to do so in the club’s constitutive document or through a special authorisation. On the other hand, trustees have an explicit mandate to sue or be sued on behalf of a society. This position is underscored in the Trustees (Perpetual Succession Act) Cap 164 Laws of Kenya under Section 3 (3) which provides: - “*The Trustees shall thereupon become a body corporate* 2 Para. 6. *by the name described into certificate and shall have perpetual succession and a common seal and power to sue and be sued in their corporate name*”. 1. It follows, therefore, that club officials who have sued on behalf of the club have an obligation to demonstrate where they have obtained such powers from. Unfortunately, the Plaintiffs have neither availed the club constitution nor any resolution of the club that has authorised them to sue on behalf of the club. This is a fatal omission. Furthermore, the suit before us is on the alleged compulsory acquisition of the suit property which is registered in the name of “The Sergoit Polo Club Trustees (Registered)”. It, therefore, goes without saying that the only competent party who can bring a claim in regard to the suit property isthe registered trustees in whom the suit property is vested. This suit is therefore incompetent to the extent that the Plaintiffs have not demonstrated their legal capacity to sue on behalf of the Club. 2. The above determination should dispose of the entire suit but we feel compelled to speak to the substance of the suit noting that this is the second time a suit has been filed on the issue before us. Despite the above findings on capacity, we are nevertheless not satisfied that the Plaintiffs have proven their case even if we were to take it that they have authority to file this claim. They have not advanced evidence in the form of a current search to show the proprietorship of the suit property and whether the Club is the current registered proprietor. This is in view of the admitted fact that a meeting was held where a section of the club members resolved to surrender this property back to government for public use for the Respondents. It is upon the Plaintiffs or any other party challenging the use of the suit property by the Respondents to show that the same is illegal through documentation that shows the current proprietorship or how the same changed hands. Absent that critical piece of evidence is fatal in a claim for unlawful deprivation of land. The Plaintiffs have not proved their case on a balance of probabilities. The suit is dismissed but considering that the Respondents did not participate in these proceedings to the end, we make no orders as to costs. **DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 23RD DAY OF APRIL 2026**  **………………………………… …………………………… DR. NABIL M. ORINA GEORGE SUPEYO**  **CHAIRPERSON MEMBER** **…………………………… RUTH OKAL** **MEMBER** ***IN THE PRESENCE OF:*** *N/A FOR THE PARTIES EVERLYNE – COURT ASSISTANT*