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ELCPartially AllowedELC Case No. 95 of 2016 (Osn Mi Application dated 5th February 2016)· [2017] KEELC 3570 (KLR)

Elijah Ouko Matagaro & another v Roselyne Dola Ouko & 4 others [2017] KEELC 3570 (KLR)

Environment and Land Court
17 February 2017
6,323 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court protected disputed family land by freezing all dealings on it, while allowing a fraud claim tied to two conflicting sale agreements to proceed to trial.

What this practically means

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Executive summary

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The applicants (plaintiffs), sons of the late Jason Ouko Atinda, applied for temporary injunctions restraining dealings with parcels Suna East/Wasweta I/21046 and 21047, arising from the subdivision of the deceased's parcel No. 658 and the sale of parcel 21047 to the 4th and 5th defendants for a claimed Kshs. 14,000,000 (or Kshs. 21,000,000 under a conflicting agreement). The plaintiffs alleged the subdivision and sale were done secretly, fraudulently and in breach of the customary trust under which the administrators held the land for about 24 beneficiaries. The 1st respondent denied executing any sale agreement and alleged abuse of a power of attorney. The 4th and 5th defendants claimed to be bona fide purchasers for value with indefeasible title. The 2nd and 3rd respondents raised a preliminary objection that the suit was sub judice the pending Nairobi HCP&A Cause No. 353 of 1997 and that the court lacked jurisdiction. The court applied the Mukisa Biscuit test and Section 6 of the Civil Procedure Act, holding that the issues before it were different from the succession cause since parcel 658 had ceased to exist upon subdivision and parcel 21047 had left the estate. On jurisdiction, the court held the dispute concerned use, occupation and title to land under Article 162(2)(b) and Section 13 of the ELC Act, and dismissed the preliminary objection. Finding a prima facie case given the two conflicting sale agreements and an unaccounted Kshs. 7,000,000, the court nevertheless declined injunctions in the terms sought, instead ordering maintenance of the status quo over both parcels pending trial, with each party bearing their own costs.

Key legal issues

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01

Whether the suit is sub judice the pending Probate and Administration Cause No. 353 of 1997

Holding

The suit is not sub judice; the issues in the ELC suit are different from the succession cause, and parcel 658 having been subdivided and parcel 21047 sold, those properties ceased to be available as assets in the succession cause

Reasoning

Section 6 of the Civil Procedure Act requires the same matter directly and substantially in issue between the same parties litigating under the same title. The ELC suit raises issues of trust and fraud in the subdivision and sale, which are not before the probate court. Parcel 658 ceased to exist upon subdivision and parcel 21047 ceased to be part of the estate without the purchasers being enjoined. The preliminary objection therefore fails on this ground.

p. 7
02

Whether the Environment and Land Court has jurisdiction over the dispute

Holding

The court has jurisdiction because the prayers sought are declarations relating to the use, occupation and title to land, which fall within Article 162(2)(b) and Section 13 of the ELC Act

Reasoning

The plaintiffs seek declarations that the subdivision and sale were unlawful, fraudulent and in breach of trust, a permanent injunction and eviction orders. These are orders relating to use, occupation and title to land. Although the land formed part of the deceased's assets, once transferred to administrators they became trustees, and subsequent dealings would not necessarily be subject to the succession proceedings. The jurisdiction objection fails.

p. 8
03

Whether the plaintiffs established a prima facie case for temporary injunction

Holding

The plaintiffs demonstrated a prima facie case with probability of success arising from the two conflicting sale agreements and unaccounted Kshs. 7,000,000, but injunction was refused in favour of a status quo order

Reasoning

The existence of two sale agreements with varying consideration (Kshs. 14M and Kshs. 21M) and the undisclosed extra Kshs. 7,000,000 cast doubt on the 2nd and 3rd defendants' bona fides and support the claim that beneficiaries were not consulted. These issues require interrogation at trial. The court could not make definitive findings on the bona fide purchaser defence at interlocutory stage, so maintenance of status quo was the appropriate order.

p. 9

Legal principles established

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  • For the sub judice rule under Section 6 of the Civil Procedure Act to apply, there must be a previous suit with directly and substantially similar subject matter, the same parties litigating under the same title, and both courts must have jurisdiction to grant the relief sought
  • Where a suit is a preliminary objection, it must raise a pure point of law and cannot be raised where facts have to be ascertained
  • Once land is transferred by transmission to administrators, they become trustees for the beneficiaries and subsequent dealings with the property are not necessarily subject to pending succession proceedings
  • Fraud must be proved by evidence at trial when parties tender their evidence and are subjected to cross examination; it cannot be determined at interlocutory stage

Court orders

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  1. 1.Preliminary objection by the 2nd and 3rd respondents dismissed
  2. 2.Status quo to be maintained - no dealings with land parcels Suna East/Wasweta I/21046 and Suna East/Wasweta I/21047 relating to subdivision, sale and/or transfer and/or charging pending hearing and final determination of the suit
  3. 3.Each party to bear their own costs for the preliminary objection and the application
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court 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, "Elijah Ouko Matagaro & another v Roselyne Dola Ouko & 4 others [2017] KEELC 3570 (KLR)", Case Analysis (2017). ELC Case No. 95 of 2016 (Osn Mi Application dated 5th February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3570/eng@2017-02-17

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