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ELCDismissedNotice of Motion dated 23rd June, 2017 (suit over land parcel KAKAMEGA/MALAVA/3107)· [2018] KEELC 4796 (KLR)

Abraham Nyongesa Mulati v Maina Edwin Munyasa & another [2018] KEELC 4796 (KLR)

Environment and Land Court
25 January 2018
NMN. A. MATHEKA
3,115 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 Environment and Land Court in Kakamega dismissed a bid to freeze land dealings, because the applicant alleged fraud but brought no evidence to prove it.

What this practically means

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Executive summary

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The applicant, Abraham Nyongesa Mulati, administrator of the estate of Beatrice Kanusu Holscher, moved the court by Notice of Motion dated 23rd June 2017 under Order 40 rules 1 and 2 of the Civil Procedure Rules and section 63e of the Civil Procedure Act, seeking restriction and temporary injunctions restraining the respondents from receiving rent from premises on land parcel KAKAMEGA/MALAVA/3107 and from intermeddling with, alienating or interfering with the property. He contended that his mother was the registered owner at her death on 18th November 2009, that Jane Tunai Kanusu fraudulently procured registration of the land into her own name on 15th July 2010 after the death and without administration of the estate, and that the respondents derived title only by transmission through that fraudulent registration. The respondents opposed, arguing non-disclosure of a similar application in Kakamega HC Succession Cause No. 24 of 2015 whose ex parte orders had been set aside, that the applicant's advocates were improperly on record without a Notice of Appointment, and that the applicant failed the Giella v Cassman Brown test. The court applied Giella and Mrao Ltd v First American Bank, holding that fraud must be particularized and proved, that the applicant had not shown a prima facie case or irreparable injury, and that granting the orders would deny the respondents the opportunity to give evidence on how they acquired the land. It also found Akwala & Company Advocates improperly on record with no audience, advising regularization. The application was dismissed with costs.

Key legal issues

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01

Whether the applicant established a prima facie case for temporary injunction

Holding

The application fails on the Giella v Cassman Brown test; no prima facie case or irreparable injury was shown, and granting the orders would deny the respondents the chance to give evidence on how they acquired the land

Reasoning

The court applied Giella v Cassman Brown and Mrao Ltd v First American Bank on what constitutes a prima facie case. It found the applicant's fraud allegations unsubstantiated: entry No. 4 in the register shows Jane Tunai bought the land for Ksh 200,000, contradicting the gift explanation. Allowing the prayers would pre-empt evidence from the respondents, who have been in actual occupation. The applicant failed to discharge the onus at this interlocutory stage.

p. 5
02

Whether M/S Akwala & Company Advocates had audience

Holding

The firm was improperly and irregularly on record for failure to file and serve a Notice of Appointment of Advocates, and thus had no audience; its client was advised to regularize representation

Reasoning

On 5th October 2017 the applicant appeared through counsel holding brief for Mr Munyendo without indicating the firm was on record. The pleadings had been drawn in person by the applicant, and neither Munyendo nor Akwala & Company filed a Notice of Appointment as required by Order 9 rules 1 and 7 of the Civil Procedure Rules, making the omission fatal to their audience.

p. 5

Legal principles established

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  • Fraud must be particularized and proved; mere allegation is insufficient to sustain an interlocutory injunction in a claim of fraudulent title acquisition
  • The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience

Court orders

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  1. 1.The application dated 23rd June, 2017 is dismissed
  2. 2.The applicant shall pay costs of the application
  3. 3.The respondents are advised to regularize their representation to avoid their pleadings being struck out in future

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1 and 2
  • Civil Procedure Actsection 63e
  • Civil Procedure RulesOrder 9 rules 1 and 7

Cases cited (4)

  • Aviation & Airport Services Workers Union (K) v Kenya Airport Authority & Another
    (2014) eKLR
  • Kenya National Security Workers Union v Total Security Surveillance Limited
    Cause No. 1404 of 2012
  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    {2003}
Jurisdiction invoked
Order 40 rules 1 and 2 of the Civil Procedure Rules and section 63e of the Civil Procedure 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, "Abraham Nyongesa Mulati v Maina Edwin Munyasa & another [2018] KEELC 4796 (KLR)", Case Analysis (2018). Notice of Motion dated 23rd June, 2017 (suit over land parcel KAKAMEGA/MALAVA/3107). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4796/eng@2018-01-25

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