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ELCPartially Allowed· [2019] KEELC 1581 (KLR)

Lelopa Ole Parsaurei v County Land Registrar & 13 others [2019] KEELC 1581 (KLR)

Environment and Land Court
30 September 2019
3,993 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Plaintiff, administrator of the estate of Masare Ole Alaseso Mapi (deceased), brought a Notice of Motion dated 20th December 2018 under Order 40 of the Civil Procedure Rules seeking interlocutory injunctions, surrender of title deeds and registration of restrictions over land parcel Kajiado/Olooloitikoshi/Kitengela/3, alleging a fraudulent 1982 subdivision effected by a forged thumbprint and subsequent dealings by the Defendants to the detriment of the beneficiaries holding a confirmed grant in Kajiado Succession Cause No. 6 of 2018. The 5th Defendant raised preliminary objections dated 18th February 2019 (insolvency bar, Section 560 of the Insolvency Act) and 11th March 2019 (jurisdiction over a subsequent application). The 8th, 11th and 13th Defendants opposed, claiming to be bona fide purchasers for value long in possession. The court framed three issues. First, applying Giella v Cassman Brown and Nguruman, it held the Plaintiff had not established a prima facie case: the Green Cards showed the land was subdivided and defendants took possession before the deceased's demise, and no actual, non-compensable harm was demonstrated. Second, on limitation, since fraud must be strictly proved (R.G. Patel v Lalji Makanji), the court declined to determine the issue without viva voce evidence and directed the matter to full trial. Third, on jurisdiction, it held the ELC has no power to grant leave to sue a company in receivership under Section 560(1) of the Insolvency Act, following Lillian S, and struck out the suit against the 5th Defendant. The motion and the 11th March objection were disallowed; the 18th February objection was allowed with costs to the 5th, 8th, 11th and 13th Defendants.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for interlocutory injunction

Holding

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

Reasoning

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.

p. 4
02

Whether the Plaintiff's claim is statute barred

Holding

Not conclusively determined at interlocutory stage; since fraud is alleged, the question requires viva voce evidence and the matter must proceed to full trial

Reasoning

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.

p. 4
03

Whether the Court has jurisdiction over the 5th Defendant under administration

Holding

The ELC lacks jurisdiction to grant leave to sue a company in receivership; the suit against the 5th Defendant is struck out

Reasoning

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'.

p. 5

Legal principles established

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  • 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

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  1. 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. 2.The Notice of Motion Application dated 20th December, 2018 is disallowed/dismissed
  3. 3.The 5th Defendant's Notice of Preliminary Objection dated 11th March, 2019 is disallowed
  4. 4.The 5th, 8th, 11th and 13th Defendants are granted the costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1; Order 40 Rules 1, 2 & 4
  • Civil Procedure ActSections 1A, 1B, 3 & 3A
  • Limitation of Actions ActSections 7 and 26
  • Insolvency ActSection 560(1)
  • Environment and Land Court ActSection 13(1) and (2)
  • Constitution of KenyaArticle 162(2)(b)

Cases cited (16)

  • Mrao vs First American Bank of Kenya Ltd & two others
    C.A Civil Appeal No. 39 of 2002 (2003) KLR 125
  • Paul Gitonga Wanjau V Gathuthi Tea Factory Company Ltd & 2 others
    (2016) eKLR
  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • John Mwamuye Makupe (Suing as the Legal Representative of the Estate of Makupe Yawa Mwalungo V Omar Tsuma Baya & Anor
    (2019) eKLR
  • Dennis Moya Vs Virginia Wanjiku Ngunjiri & Others
    (2019) eKLR
  • Paul Kirotet Ole Matuku Vs Magana Holdings Ltd
    (2018) eKLR
  • Abigel Barmao V Mwangi Theuri
    (2013) eKLR
  • Beatrice Chelagat Rop & Anor Vs HFCK
    (2006) eKLR
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
  • R. G. Patel v. Lalji Makanji
    [1957] EA 314
  • Charity Wangui Ngumo V Chase Bank Limited (In Receivership) & Antique Actions Agencies
    (2018) eKLR
  • Kenya Union Of Commercial, Food and Allied Workers Vs Peter Obondo Kahi & Nakumatt Holdings Limited
    (2018) eKLR
  • Fredrick Okoth Owino V TSS Grain Millers
    (2017) eKLR
  • Pravin Galot V Chief Magistrates' Court at Milimani Law Courts
    (2017) eKLR
  • The Owners of Motor Vessel "Lillian S" vs. Caltex Oil Kenya Limited
    (1989) KLR 1
  • Samuel Kamau Macharia & Another Vs Kenya Commercial Bank Ltd & 2 others
    (2012) eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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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.