Gallery God Mission Trust v Alfred Tobiko Yiankaso & 3 others [2018] KEELC 2738 (KLR)
The bottom line
#The Kajiado Environment and Land Court reinstated a trust's land suit after rivals fraudulently discontinued it, confirming courts won't let parties profit from their own procedural trickery.
What this practically means
#Executive summary
#Key legal issues
#Validity of the Notice to Act in Person
The Notice to Act in Person was invalidly filed as it was not served on the Plaintiff's advocate on record as required by Order 9 rule 8 of the Civil Procedure Rules.
The court examined Order 9 rule 8, which requires a party intending to act in person after having sued or defended through an advocate to give notice, with the provisions relating to notice of change of advocate applying. The Notice dated 14th February, 2013 did not indicate service on the Plaintiff's advocate. Further, the persons filing it were the named Defendants masquerading as the Plaintiff, and their Certificate of Incorporation did not name them as trustees under the original Trust Deed of 25th April, 2001.
Validity of the Notice of Discontinuance and the resulting decree
The Notice of Discontinuance was a nullity: leave of the Judge was required since the suit had been set down for hearing, none was sought, and it was filed before the Deputy Registrar while an injunction was in place.
Relying on Order 25 rule 2 and the Court of Appeal decision in Beijing Industrial Designing & Researching Institute v Lagoon Development Limited, the court held that where a suit is set down for hearing, discontinuance requires leave on terms as are just. The Defendants, who were sued personally and had an interest in defeating the fraud claim, discontinued the suit against themselves without leave, before the Deputy Registrar, during the lifespan of an injunction by Dulu J, and the discontinuance was never adopted as an order of the Judge. This was mischief warranting setting aside the decree and reinstating the suit.
Security for costs against the Plaintiff's advocate
The application for security for costs was refused: security for costs cannot be ordered against an advocate, only against a party, and the amount could not be ascertained at that stage.
The Defendants sought Kshs. 1,000,000 security from advocate Jane Odiya Nyabiage, alleging the persons instructing her were foreigners without assets in Kenya. The court found the advocate acted under instructions from Magnar Wagnar Kellen, the surviving original trustee, not from herself. Since an order for security for costs can only issue against a party and not his advocate, and the Defendants' costs could not be ascertained at that stage, the order was declined.
Whether the Defendants are properly the trustees of the Plaintiff
The question of who the proper trustees are can only be determined by the court after all the evidence is presented; the Defendants' purported trusteeship could not defeat the suit against them personally.
The Defendants claimed Alfred Tobiko was the registered and managing trustee since 2009 and that Karlsen's removal was duly done, but the surviving original trustee insisted his removal was fraudulent and had reported the matter to the CID. The court noted the suit contained allegations of fraud against the Defendants personally and that the Plaintiff was a legal entity capable of suing and being sued; their claimed trusteeship therefore could not terminate the personal claim against them.
Legal principles established
#- Where a suit has been set down for hearing, a plaintiff must obtain leave of the court to discontinue or withdraw the suit, and such leave is granted on terms as are just
- A party shall not be allowed to take advantage of a condition which he himself brought about
- A Notice to Act in Person must be served on the advocate on record as required by Order 9 rule 8 of the Civil Procedure Rules
- An order for security for costs cannot be granted against an advocate for a party but against the party himself
Court orders
#- 1.Set aside the judgment and decree issued on 25th March, 2013 following the Notice of Discontinuance
- 2.Reinstated the suit filed on 21st February, 2011
- 3.Directed the parties to comply with Order 11 and to set the suit down for hearing on its merits
- 4.Directed that the obtaining status quo be maintained pending the hearing and determination of the suit
- 5.Declined the Defendants' application for security for costs
- Jurisdiction invoked
- Order 40 rules 1(a)(b), 2 and 3, Order 51 rules 1, 7 and 9, Order 9 rule 8 and Order 25 rule 2 of the Civil Procedure Rules, Section 37 of the Trustee Act and Sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gallery God Mission Trust v Alfred Tobiko Yiankaso & 3 others [2018] KEELC 2738 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2738/eng@2018-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.