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ELCOtherNot stated in the judgment· [2018] KEELC 1126 (KLR)

Tawai Limited v Nathan Wanjala Muhindi & 5 others [2018] KEELC 1126 (KLR)

Environment and Land Court
25 October 2018
MNMwangi Njoroge
800 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to decide a land dispute because the real fight was over company directorship, and sent the whole case to the High Court.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, J) delivered on 25 October 2018 in a dispute concerning Tawai Farm, LR No. 5707/R. The plaintiff company, through its Chairman and Director George Mubichakani Malanga, had mounted two applications. The first, dated 30 January 2018 under Order 40 Rules 1, 2 and 2A and Order 51 Rule 1 of the Civil Procedure Rules, sought temporary injunctions restraining the six defendants from selling the plaintiff's membership shares and from selling, leasing, charging or alienating the Tawai Farm land pending the hearing of the suit, and directing the OCS Kitale Police Station to enforce the orders. The second, dated 27 February 2018 under Order 40 Rule 3(1)(2)&(3), Order 51 Rule 1 and Sections 3, 3A and 63(e) of the Civil Procedure Act, sought the attachment of each defendant's property worth Kshs.1,000,000 and their committal to civil jail for six months for contempt of injunction orders issued on 1 February 2018. The court declined to rule on either application. Noting that the plaint's primary prayer concerned restraint of sale of the plaintiff's membership shares, the judge held that ownership or transfer of the land was preceded by the unresolved question of who the correct directors of the plaintiff company were, a matter outside the ELC's mandate which the court could not properly skip. The court therefore transferred the entire matter to the High Court for determination of the leadership wrangles. No costs order was made; no authorities were cited.

Key legal issues

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Whether the Environment and Land Court could determine the plaintiff's land claims before resolving the internal directorship dispute of the plaintiff company

Holding

No; the directorship question precedes and must be resolved before the land ownership issues, and it lies outside the ELC's mandate, so the suit was transferred to the High Court

Reasoning

The court observed that the plaint's primary prayer concerned restraint of sale of membership shares of the plaintiff, and that both the injunction and contempt applications depended on who the rightful directors of the plaintiff were. Since determination of directorship is a company-law matter outside the ELC's jurisdiction, the court declined to skip that threshold issue and transferred the leadership wrangle to the High Court for determination.

p. 2

Legal principles established

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  • A court cannot determine ownership or transfer of land where that determination is preceded by an unresolved question of directorship of the claiming company which is outside its mandate; the proper course is transfer to the High Court

Court orders

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  1. 1.The matter is transferred to the High Court for determination of the leadership wrangles between the disputing parties

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1, 2 & 2A; Order 40 Rule 3(1)(2)&(3); Order 51 Rule 1
  • Civil Procedure ActSections 3, 3A and 63(e)
Jurisdiction invoked
Environment and Land Court jurisdiction; the court held the directorship dispute fell outside its mandate, invoking its inherent power to transfer (implied by Civil Procedure Act provisions cited by the parties)

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, "Tawai Limited v Nathan Wanjala Muhindi & 5 others [2018] KEELC 1126 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1126/eng@2018-10-25

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