Paul James Savage v LES Belles Sauvages Limited (In Liquidtion) & another [2017] KEELC 1214 (KLR)
The bottom line
#The Environment and Land Court in Nairobi stopped a liquidator from selling a Diani Beach property until a beneficial ownership claim is decided at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for an interlocutory injunction over the Suit Property
The court found a prima facie case with probability of success based on the Plaintiff's claim of beneficial ownership and resulting trust, to be established at trial.
The Plaintiff claims he solely provided the purchase price of Kshs 8.5 million from his inheritance, causing registration in the Company's name for common benefit. Such a claim raises a resulting trust that must be tested at trial, but was sufficient at the interlocutory stage to show a prima facie case with probability of success.
Whether damages would be an adequate remedy
Damages may not compensate the Plaintiff if the Suit Property is sold and proceeds divided among shareholders.
The court accepted that the Suit Property holds great sentimental value to the Plaintiff as it represents his inheritance from his late mother. If sold by the Official Receiver and proceeds shared between the shareholders, the loss would not be compensable in damages, justifying injunctive relief.
The Interested Party's plea of res judicata and the Salomon principle
Not resolved against the Plaintiff; the issues remain for trial.
The Interested Party argued res judicata arising from Justice Mugo's winding up judgment and invoked Salomon v Salomon on corporate personality, denying that a resulting trust arises where the Company is the registered owner. The court did not determine these issues at the interlocutory stage, holding the Plaintiff must establish his claim at trial.
Legal principles established
#- The court has a clear duty to preserve property which may be in issue in litigation to avoid a barren result.
- The object of an injunction is to keep things in status quo so that a judgment is not rendered ineffectual.
Court orders
#- 1.Order of injunction restraining the Defendant from selling the Suit Property Kwale/Diani Beach Block 783/3 until the suit is heard and determined
- 2.Direction to the parties to take steps to set down the case for hearing so that the matter can be determined expeditiously
- 3.Each party to bear its own costs
- Jurisdiction invoked
- Environment and Land Court jurisdiction (the proper forum per Tuiyott J to test the Plaintiff's claim over the Suit Property)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul James Savage v LES Belles Sauvages Limited (In Liquidtion) & another [2017] KEELC 1214 (KLR)", Case Analysis (2017). Application dated 21/4/2017 (suit filed following Paul James Savage v Les Belles Sauvage Ltd (In Liquidation) and Another [2017] eKLR). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1214/eng@2017-10-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.