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ELCPartially AllowedNot stated in the judgment (suit commenced by Plaint dated 23rd March, 2015)· [2017] KEELC 3556 (KLR)

Joseph Muthiani Kivindu & another v Fredrick Mwaniki Musau & 3 others [2017] KEELC 3556 (KLR)

Environment and Land Court of Kenya
3 March 2017
2,979 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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The court froze a Machakos land title, joined the buyer to the case, and found the seller in contempt for selling property already under a status quo order.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (Angote J) determined a Notice of Motion dated 14th September, 2016 by the Plaintiffs, who claimed about 13 acres bought by their father/husband from the 1st Defendant's father in 1966 within Ngelani Ranching Unity, originally described as Plot No. 13A under Block No. 8914. On discovering that a title had been issued as L.R. No. 8914/43, the Plaintiffs sought conservatory orders, joinder of the purchaser KUSCCO as 4th Defendant with leave to amend the Plaint, and committal of the 1st Defendant and two KUSCCO officials for contempt of the orders of 23rd March, 2015 and 8th April, 2015. The court, comparing the sub-division plan, Survey Plan No. 385/92 and the Deed Plan, found Plot 13A and L.R. No. 8914/43 to be the same parcel. KUSCCO, having purchased the land pendente lite for Kshs. 27,000,000 by an agreement of 21st October, 2015 (transfer registered 2nd August, 2016), was joined as 4th Defendant. Interim conservatory orders restraining further dealings were issued. The 1st Defendant, found to have been served and aware of the status quo orders, was held to be in contempt for selling and transferring the suit property; punishment was deferred to allow him to be heard in mitigation. However, the KUSCCO officials were held not to be in contempt as there was no evidence they were served with or aware of the orders. Costs were not addressed in the final orders.

Key legal issues

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01

Identity of the suit property

Holding

Plot No. 13A under Block No. 8914 is the same parcel as L.R. No. 8914/43

Reasoning

The court superimposed the proposed sub-division plan prepared by Real Plans Consultants, the authenticated Survey Plan No. 385/92 approved by the Director of Survey, and the Deed Plan for L.R. No. 8914/43. Comparing size, location, neighbouring plots and access roads left no doubt the parcels were one and the same. The 1st Defendant produced no evidence that the two plots were different, and his claim to another plot 13A was a red herring.

p. 4
02

Joinder of the purchaser as 4th Defendant

Holding

KUSCCO, having bought the land while the suit was pending, must be joined as 4th Defendant with leave to amend the Plaint

Reasoning

Because the court found the two parcels to be one and the same, and the transfer to KUSCCO was registered on 2nd August, 2016 during the pendency of the suit, the land is now registered in the Interested Party's name. The outcome of the dispute would therefore directly affect its interests, and joinder was necessary for the effective and effectual determination of the matter.

p. 4
03

Entitlement to injunction/conservatory orders

Holding

Interim conservatory orders preserving the suit property issued pending trial

Reasoning

Whether the 1st Defendant's father sold his ranch share to the Plaintiffs' patriarch is a matter for trial after viva voce evidence. However, there was evidence the Plaintiffs' patriarch occupied the land until his death, and correspondences since 1992 showed disputes over the parcel. To prevent further dealings and prejudice pending determination, an order conserving the suit property was appropriate.

p. 4
04

Contempt by the 1st Defendant

Holding

The 1st Defendant was in contempt of the orders of 23rd March, 2015 and 8th April, 2015

Reasoning

An Affidavit of Service showed the 1st Defendant was served with the order of 23rd March, 2015 on 25th March, 2015 at his place of work, which he never denied or challenged by cross-examination. His advocate entered appearance on 8th April, 2015 when status quo was confirmed. While the status quo order remained in force, he entered a sale agreement on 21st October, 2015 and signed the transfer on 15th April, 2016, in breach of the orders.

p. 5
05

Contempt by KUSCCO officials

Holding

Elly Oyugi and George Ototo were not in contempt

Reasoning

The Interested Party was not a party to the suit when the orders of 23rd March, 2015 and 8th April, 2015 were made, and there was no evidence that its officials were served with or aware of the orders before the sale agreement of 21st October, 2015 was signed. Without knowledge of the orders, contempt could not be established against them.

p. 6

Legal principles established

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  • Status quo means everything remains as it was at the time the order was given, and it binds the parties until the application is heard and determined
  • Courts must act swiftly and firmly when their orders are flouted, since obedience to court orders underpins the dignity and authority of the courts
  • A party who purchases suit property pendente lite should be joined so the court can determine the matter effectively and effectually
  • Where ownership of land is disputed, conservatory orders preserving the property should issue pending trial and viva voce evidence

Court orders

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  1. 1.Interim conservatory orders and/or status quo in terms of interim injunction restraining KUSCCO or its agents, servants or whomsoever from alienating, selling, sub-dividing, surveying or in any manner interfering with Title No. 8914/43 (IR No. 160391) pending the hearing and determination of the suit
  2. 2.Kenya Union of Savings and Credit Co-operatives Ltd (KUSCCO) enjoined in the suit as the 4th Defendant, and the Plaintiffs granted leave to amend the Plaint accordingly
  3. 3.The 1st Defendant found to have been in contempt of the orders of the court of 23rd March, 2015 and 8th April, 2015, with the court to proceed to punish him after hearing him in mitigation

Authorities

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Cases cited (2)

  • Shimmers Plaza Ltd vs. National Bank of Kenya Ltd
    (2015) eKLR
  • Commercial Bank of Africa Limited vs. Isaac Kamau Ndirangu
    (1992) eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land (not expressly cited in the ruling)

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, "Joseph Muthiani Kivindu & another v Fredrick Mwaniki Musau & 3 others [2017] KEELC 3556 (KLR)", Case Analysis (2017). Not stated in the judgment (suit commenced by Plaint dated 23rd March, 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3556/eng@2017-03-03

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