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ELCDismissedELC No. 134 of 2007 (consolidated suit, Notice of Motion dated 9th June 2014)· [2017] KEELC 3278 (KLR)

Naaman K. Meme v Stephen Maingi Muriithi & 6 others [2017] KEELC 3278 (KLR)

Environment and Land Court
17 February 2017
5,369 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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A Kenyan buyer who purchased land from someone without authority over a deceased's estate lost every court relief he sought.

What this practically means

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Executive summary

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The plaintiff, who claimed under a sale agreement dated 28th October 2004 with the 1st defendant over a portion of land formerly within LR No. 7102/2 Embakasi, moved the court by Notice of Motion dated 9th June 2014 seeking leave to join the 4th to 7th defendants, leave to amend the plaint, a temporary injunction against the proposed parties, a directive suspending or quashing the 7th defendant's approvals of a subdivision scheme, and the committal of the 2nd defendant for contempt of orders issued on 8th April 2009 and confirmed on 3rd November 2011. The plaintiff alleged the 4th to 6th defendants, as agents of the 2nd defendant, demolished his structures and that the 7th defendant approved an access road across his property. The 2nd defendant opposed, contending the sale agreement was void ab initio since the 1st defendant lacked letters of administration over the deceased's estate, that the orders were ambiguous and unserved, and that public interest in access roads should prevail. The 7th defendant objected to re-joinder, the plaintiff having withdrawn his claim against it in 2009 with costs outstanding. Okong'o J applied the Order 1 Rule 10(2) necessity test and found the 4th to 6th defendants not necessary parties; the 7th defendant could not be rejoined before settlement of awarded costs. On the injunction, the court found no prima facie case because the 1st defendant had no capacity to sell estate property, citing section 45(1) of the Law of Succession Act. The contempt application failed on ambiguity of the order and want of proof to the applicable standard. The whole application was dismissed with costs to the defendants on 17th February 2017.

Key legal issues

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01

Joinder of parties

Holding

Joinder refused because the 4th to 6th defendants were not shown to be necessary parties and the 7th defendant could not be rejoined before payment of outstanding costs

Reasoning

The court applied Order 1 Rule 10(2) and the necessity test. The plaintiff failed to demonstrate the 4th to 6th defendants' interest, their role in the subdivision approval, or their participation in the demolition. As regards the 7th defendant, the plaintiff had voluntarily withdrawn his claim against it in 2009 with costs awarded to it, and had not settled those costs before seeking its re-joinder.

p. 7
02

Prima facie case for temporary injunction

Holding

No prima facie case established because the sale agreement underpinning the plaintiff's title was void for want of capacity

Reasoning

The 1st defendant sold the property in 2004 without letters of administration over his deceased father's parcel LR 7102/2. Section 45(1) of the Law of Succession Act prohibits dealings with such property. Relying on Esther Njoki Rurigi and Elly Odhiambo Onyuka, the court held such agreements null and void, hence the plaintiff had no enforceable proprietary interest to protect by injunction.

p. 8
03

Contempt of court

Holding

Committal refused because the order was ambiguous and the breach was not proved to the required standard

Reasoning

The order of 3rd November 2011 referred to LR No. 7102/2 now mutated to LR No. 27903/1-27, covering potentially 590 plots, and did not identify the specific parcel. The court accepted the 2nd defendant's contention of ambiguity. Further, there was no evidence linking the 2nd defendant to the demolition or the sales, and the contempt standard was not met.

04

Suspension or quashing of the 7th defendant's approvals

Holding

Such an order cannot issue at the interlocutory stage

Reasoning

The court held that an order suspending, revoking or quashing administrative approvals sought pending the hearing of the suit was premature and had to await trial. The 7th defendant also argued the plaintiff had not exhausted statutory appeal procedures under section 41 of the Physical Planning Act.

p. 8

Legal principles established

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  • The test for joinder is whether the party's presence is necessary for the court to effectually and completely adjudicate on all questions in the suit
  • A person who has not taken out letters of administration lacks capacity to deal with property still registered in the deceased's name, protected by section 45(1) of the Law of Succession Act
  • The standard of proof of contempt is higher than balance of probabilities but not beyond reasonable doubt
  • Knowledge of a court order suffices for contempt proceedings, dispensing with personal service
  • No person may be punished for contempt of an ambiguous order; the order must be clear and unambiguous

Court orders

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  1. 1.The plaintiff's Notice of Motion application dated 9th June 2014 is dismissed wholly
  2. 2.Costs of the application are awarded to the defendants

Authorities

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Legislation

  • Civil Procedure Actsection 3A
  • Civil Procedure Actsection 100
  • Civil Procedure Actsection 63
  • Civil Procedure RulesOrder 1 Rule 10(2)
  • Civil Procedure RulesOrder 8 Rule 3
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3(1)
  • Law of Succession Actsections 2, 45(1), 79, 80, 81 and 82
  • Judicature Actsection 5
  • Physical Planning Actsection 41

Cases cited (13)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Central Bank of Kenya Ltd vs. Trust Bank Ltd
    Civil Appeal No. 222 of 1998
  • Hilda Kagura vs. Moses Leshao & 3 others
    (2012) eKLR
  • George Munge vs. Sanjeev Sharma & 3 others
    ELC No. 677 of 2011
  • Teachers Service Commission vs. Kenya National Union of Teachers & 2 others
    (2013) eKLR
  • Hadkinson vs. Hadkinson
    (1952) ALL ER 567
  • Africa Management Communication International Ltd vs. Joseph Mathenge Mugo & another
    (2013) eKLR
  • Habib Bank A.G Zurich vs. Eugene Marion Yakub
    Civil Application No. 43 of 1982
  • Esther Njoki Rurigi vs. Patrick Gathenya
    Nairobi CA 128 of 2002
  • Elly Odhiambo Onyuka vs. Ayub Odhiambo Migwalla
    Civil Appeal No. 81 of 2002
  • Republic vs. Nairobi City County Ex-Parte David Peter Ndambuki
    (2015) eKLR
  • Shimmers Plaza Limited vs. National Bank of Kenya Limited
    Nai. CA 33 of 2012
  • Mutitika vs. Baharini Farm Limited
    (1985) KLR 229
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes; application under Order 1 Rule 10(2), Order 8 Rule 3, Order 40 of the Civil Procedure Rules, sections 3A and 100 of the Civil Procedure Act and section 5 of the Judicature Act

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, "Naaman K. Meme v Stephen Maingi Muriithi & 6 others [2017] KEELC 3278 (KLR)", Case Analysis (2017). ELC No. 134 of 2007 (consolidated suit, Notice of Motion dated 9th June 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3278/eng@2017-02-17

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