Lelopa Ole Parsaurei v County Land Registrar & 13 others [2019] KEELC 1581 (KLR)
The bottom line
#A Kenyan land court refused to stop land dealings tied to an alleged forged subdivision, and struck out claims against a company in receivership.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for interlocutory injunction
No prima facie case established; the Defendants held titles and possessed the land prior to the deceased's demise, in the Plaintiff's full glare
Applying Giella v Cassman Brown and Nguruman Ltd v Jan Bonde Nielsen, the court noted the Green Cards showed the suit land was subdivided before the deceased died. The plaintiff did not show what steps the deceased took, nor the harm suffered. The defendants' title claims were not baseless and the injury alleged was speculative and compensable in damages.
Whether the Plaintiff's claim is statute barred
Not conclusively determined at interlocutory stage; since fraud is alleged, the question requires viva voce evidence and the matter must proceed to full trial
Section 7 of the Limitation of Actions Act bars land recovery claims after 12 years, but Section 26 extends time where fraud is alleged. As the plaintiff alleges forgery of the deceased's thumbprint, and allegations of fraud must be strictly proved per R.G. Patel v Lalji Makanji, the court cannot determine the limitation issue without oral evidence.
Whether the Court has jurisdiction over the 5th Defendant under administration
The ELC lacks jurisdiction to grant leave to sue a company in receivership; the suit against the 5th Defendant is struck out
Section 560(1) of the Insolvency Act prohibits instituting legal proceedings against a company under administration without the administrator's consent or the court's approval. The plaintiff neither sought nor obtained leave. The Insolvency Act refers to the High Court, and Section 13 of the ELC Act does not confer power to grant such leave, so the court downs its tools per Owners of Motor Vessel 'Lillian S'.
Legal principles established
#- A company under administration/receivership may not be sued without the consent of the administrator or approval of the Court under Section 560(1) of the Insolvency Act, and the ELC lacks jurisdiction to grant such leave
- A court without jurisdiction must halt proceedings
- Allegations of fraud must be strictly proved to a standard above mere balance of probabilities
- In interlocutory injunction applications, speculative injury cannot suffice; the injury must be actual and not compensable by damages
Court orders
#- 1.The 5th Defendant's Notice of Preliminary Objection dated 18th February, 2019 is allowed and the suit is struck out as against the 5th Defendant with costs to it
- 2.The Notice of Motion Application dated 20th December, 2018 is disallowed/dismissed
- 3.The 5th Defendant's Notice of Preliminary Objection dated 11th March, 2019 is disallowed
- 4.The 5th, 8th, 11th and 13th Defendants are granted the costs of the application
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act
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.
Cite this brief
#Cite this brief
Caselaw, "Lelopa Ole Parsaurei v County Land Registrar & 13 others [2019] KEELC 1581 (KLR)", Case Analysis (2019). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1581/eng@2019-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.