Hezekia Kipkorir Maritim & 10 others v Philip Kipkoech Tenai & 2 others [2016] KEELC 673 (KLR)
The bottom line
#An Eldoret court stopped a bank from selling disputed land for now, but warned buyers in occupation that a registered title still wins unless proven otherwise.
What this practically means
#Executive summary
#Key legal issues
#Competence of the suit where the 1st plaintiff swore verifying and supporting affidavits on behalf of co-plaintiffs without written authority
The defect is not fatal; the court exercised its discretion to allow the plaintiffs to regularise rather than strike out the plaint or dismiss the 10 plaintiffs' claim
Under Order 1 Rule 13(1) & (2) and Order 4 Rule 1(3) CPR 2010, authority for one plaintiff to act or swear for others must be in writing and filed. None was filed. However, following the Court of Appeal in Research International East Africa Ltd and Mabeya J in Abdulla Abshir, the court retains discretion to permit compliance; since no application to strike out the plaint was before it, the plaint was left intact and the 1st plaintiff's claim stands in any event.
Locus standi of the plaintiffs to challenge the 3rd defendant's statutory power of sale
Although the sale agreements disclosed relate to different parcels from the suit land, the plaintiffs' assertion of physical occupation entitled them to the benefit of doubt at the interlocutory stage and they have locus standi
The green card shows the suit land registered in the 1st defendant's name arising from Plot No. 2331, and the sale agreements refer to parcels such as Block 20/2330, 1887 and 158, not the suit land. Yet the plaintiffs assert occupation with matrimonial homes; occupational interest can only be ascertained at trial, so they were given the benefit of doubt and an opportunity to be heard on their assertion of occupation.
Whether an interlocutory injunction should issue against the 3rd defendant's statutory power of sale
No prima facie case and no irreparable harm demonstrated, but the balance of convenience favours maintaining the status quo pending trial
Applying Giella v Cassman Brown, the plaintiffs failed on the first limb because the title is registered in the 1st defendant's name and occupational rights cannot supersede the registered owner's rights at this stage, and failed on the second limb because the purchase price was quantified and refundable. On the third limb, the golden rule of preserving the suit property dictated maintenance of the status quo, restraining exercise of the statutory power of sale.
Legal principles established
#- Lack of written authority for one plaintiff to swear affidavits on behalf of co-plaintiffs does not necessarily void the proceedings; the court has discretion to allow compliance rather than strike out the plaint
- A registered title is the legitimate proof of ownership unless proved otherwise, and occupational rights asserted by third parties cannot at the interlocutory stage supersede the rights of the registered owner
- The golden rule in applications for injunctions is to maintain the status quo and thereby preserve the suit property
Court orders
#- 1.Status quo to be maintained in the sense that the 3rd Defendant not to exercise its statutory power of sale pending the hearing and determination of this suit
- 2.Plaintiffs granted an opportunity to comply with the rules of procedure by filing written authority/verifying affidavits rather than having the plaint struck out or the suit of the 10 plaintiffs dismissed
- Jurisdiction invoked
- Original civil jurisdiction over land disputes; application brought under Order 40 Rule 1 of the Civil Procedure Rules 2010 and sections 1A, 3A and 63 of the Civil Procedure Act, Cap 21
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Hezekia Kipkorir Maritim & 10 others v Philip Kipkoech Tenai & 2 others [2016] KEELC 673 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/673/eng@2016-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.