Nawaz Abdul Manji & 4 others v Vandeep Sagoo & 8 others [2017] KEELC 3645 (KLR)
The bottom line
#A Kenyan court stopped Eldoret Club officials from cutting heritage trees, ruling that trustees can sue without committee approval and trees belong to the trust.
What this practically means
#Executive summary
#Key legal issues
#Prima facie case for temporary injunction
A prima facie case was established: it is arguable the committee acted improperly in deciding to cut trees without consulting the trustees and members
The court applied the Giella v Cassman Brown principles. It found trusteeship not disputed, and that under sections 3 and 4 of Cap 164 movable and immovable property of the trust vests in the trustees, including trees attached naturally to the land. The defendants' failure to consult the trustees over a decision touching trust land raised a serious question to be tried, notwithstanding that the certificate of incorporation and trust deed were not availed.
Irreparable harm
Clearing forest without consulting the trustees would cause irreparable harm not compensable in damages
The court balanced the defendants' safety concerns (falling trees) against the plaintiffs' environmental and aesthetic concerns. It held that old trees dating to colonial days, once felled, cannot be replaced and that the harm to trees outweighs the harm to humans, so damages would be inadequate if the plaintiffs ultimately succeeded.
Authority of trustees to sue
Trustees as a body corporate need no committee authority to institute suit
Counsel for the defendants argued no resolution authorised the suit or the advocates. The court held it arguable whether trustees need authority to sue over trust property because the incorporated body can sue and be sued in its own name, and rejected the requirement of committee consent as contrary to sections 3 and 4 of Cap 164.
Status of the 9th defendant (contractor)
The 9th defendant is a necessary party properly enjoined to be restrained
Counsel for the 9th defendant argued no cause of action was pleaded against him. The court held he was enjoined by court order as the winning bidder of the procurement contract to cut the trees and is a necessary party to be restrained from cutting them.
Legal principles established
#- Trees naturally attached to land form part of the immovable property which vests in incorporated trustees
- An incorporated body of trustees has power to sue and be sued in its corporate name and does not need the committee's authority to file suit over trust property
- Where harm to the environment is irreparable and damages inadequate, a temporary injunction may issue despite competing safety concerns
Court orders
#- 1.Temporary injunction restraining the defendants, their servants and/or agents from cutting down the trees forming the natural environment and natural fauna within and around the Eldoret Club pending hearing and final determination of the suit
- 2.The defendants restrained from harassing the plaintiffs and from taking other action prejudicial to the plaintiffs' membership pending hearing and final determination of the suit
- 3.The trees already cut to be disposed of by selling them for the benefit of the Club in consultation with the trustees of the Club
- Jurisdiction invoked
- Original civil jurisdiction; injunction jurisdiction over trust/club property (Trustees (Perpetual Succession) Act Cap 164 invoked); no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Karolyne Mwatha Mburu & 2 others v Athi Water Services Board and Water Resources Authority [2019] KEELC 3921 (KLR)[2019] KEELC 3921 (KLR)13 Mar 2019
Cite this brief
#Cite this brief
Caselaw, "Nawaz Abdul Manji & 4 others v Vandeep Sagoo & 8 others [2017] KEELC 3645 (KLR)", Case Analysis (2017). Not stated in the judgment (Notice of Motion dated 21st November 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3645/eng@2017-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.