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ELCDismissedEldoret High Court (ELC) suit - number not stated in judgment· [2016] KEELC 677 (KLR)

Albert Kipruto Metto & another v William Ayabei Chemitei & 4 others [2016] KEELC 677 (KLR)

Environment and Land Court (High Court), Eldoret
25 July 2016
2,770 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Eldoret Environment and Land Court dismissed grandsons' attempt to block land sale because they lacked letters of administration for their deceased grandfather's estate.

What this practically means

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Executive summary

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The plaintiffs, grandsons of the late Kimeto Mbulwa Mungotio, sought a temporary injunction restraining the defendants from alienating, disposing of, wasting or interfering with parcels SERGOIT/KOIWOPTAOI BLOCK 10 (KARO)/308 and 309 in Uasin Gishu County pending determination of a suit to annul the defendants' title. They alleged their grandfather purchased the land in the early 1970s from Kechui Farm, that they had lived there for over 35 years, and that on 24th April 2015 the 1st to 3rd defendants, armed with a court order from Eldoret CMCC No. 744 of 2008 obtained against one Kipkemboi Mulwa unknown to them, demolished their houses and evicted them without service of any notice or pleadings. The defendants denied the plaintiffs' locus standi, asserting the land belonged to Karo Farm Ltd which sold it in 2005, and that the eviction was lawful under a subsisting court order. The court found that the right asserted accrued to the deceased grandfather and could only be enforced by his administrator; that a valid decree declaring ownership in favour of the defendants existed and the plaintiffs' remedy was review or appeal as interested parties; that the alleged fraud by farm managers could not be proved without joining them; that the plaintiffs' loss was compensable in damages; and that the balance of convenience favoured the registered proprietors. The application was dismissed with costs.

Key legal issues

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01

Prima facie case with probability of success

Holding

Not established - there is an unappealed decree of the Chief Magistrate's Court declaring ownership in favour of the defendants, and the plaintiffs have not demonstrated administrator status to assert their deceased grandfather's right.

Reasoning

The court noted a subsisting decree in Eldoret CMCC No. 744 of 2008 declaring the land to belong to the defendants, which the plaintiffs never sought to set aside on review or appeal. The right asserted accrued to the deceased grandfather, and only his administrator could enforce it on proof of his right. The plaintiffs also failed to enjoin the farm managers they accuse of fraud. Hence no prima facie case.

p. 4
02

Irreparable loss and balance of convenience

Holding

No irreparable loss: the plaintiffs were evicted under a valid court order and can be compensated in damages; balance of convenience favours the registered proprietors in occupation.

Reasoning

The court held that since the eviction flowed from a valid court order, any loss suffered by the plaintiffs, if they ultimately succeed, is compensable in damages. Reinstating them onto the land would infringe the defendants' registered proprietary rights. As the plaintiffs are currently not in occupation, the balance of convenience favours refusal of the injunction.

p. 5
03

Whether the plaintiffs were the subjects of the lower court eviction order

Holding

Uncertain - the deceased grandfather was known as Kimeto Arap Mbulwa, not Kipkemboi Arap Mulwa, so it is not clear the plaintiffs' grandfather was the defendant in the lower court case.

Reasoning

The defendants asserted that the 2nd plaintiff was the judgment debtor in CMCC No. 744 of 2008. The court observed that the plaintiffs' grandfather was known as Kimeto Arap Mbulwa and not Kipkemboi Arap Mulwa, so the identification was not clear. Even so, the lower court had determined ownership, and the proper remedy for aggrieved non-served occupants was review or appeal as interested parties.

p. 4

Legal principles established

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  • A right accruing to a deceased person can only be asserted or enforced through the administrator of the estate, upon proof of the deceased's right in the property.
  • A party evicted pursuant to a valid court order who did not participate in that case should pursue review or appeal as an interested party rather than litigate afresh.
  • Fraud alleged against persons who are not parties to the suit cannot be established unless those persons are enjoined.

Court orders

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  1. 1.The application for temporary injunction is dismissed
  2. 2.Costs awarded to the defendants

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40(2)(a)
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (2)

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Giella v Cassman Brown
Jurisdiction invoked
Original civil jurisdiction over land matters (Environment and Land Court); specific provision not stated

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Albert Kipruto Metto & another v William Ayabei Chemitei & 4 others [2016] KEELC 677 (KLR)", Case Analysis (2016). Eldoret High Court (ELC) suit - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/677/eng@2016-07-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.