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ELCPartially AllowedELC Case No. 81 of 2018 (consolidated with ELC Case No. 4 of 2019)· [2019] KEELC 2593 (KLR)

Melissa Muhonja Mmata v Lawrence Mmata Chore & another; Attorney General & another (Interested Parties) [2019] KEELC 2593 (KLR)

Environment and Land Court of Kenya
4 July 2019
3,528 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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A Kenyan land dispute court froze the property and locked disputed money in a joint account, refusing to hand anyone a win before full trial.

What this practically means

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Executive summary

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The court delivered a ruling on two interlocutory applications arising from a disputed sale of land parcel Butsotso/Shikoti/17938. The 1st defendant, Lawrence Mmata Chore, and the 2nd defendant, Melissa Muhonja Mmata, entered a sale agreement dated 30/8/2018 over the parcel at a consideration of Ksh. 30,000,000/=. The plaintiff, Mary Awino Kweyu, claims she paid the full purchase price and seeks specific performance, while the 2nd defendant contends the agreement was for only an undeveloped 0.17 Ha portion and that a later transfer of 0.2 Ha was executed under duress during the 1st defendant's police detention. The first application, by the 1st defendant, sought joinder of the Attorney General and DCIO Kakamega as interested parties, injunctions against re-arrest and alienation, release of confiscated title documents, and a refund of Ksh. 100,000/=. The court refused the joinder, finding the same issues already before the High Court in Petition No. 61 of 2018 and the joinder principles unfulfilled. On the injunction, the court found the contested facts required full trial and instead granted an inhibition order over the suit property pending determination. The second application, by the plaintiff, sought consolidation of Kakamega ELC Case No. 81 of 2018 with ELC Case No. 4 of 2019 and the securing of funds. Applying the Nyati Security Guards principles, the court consolidated the suits with ELC Case No. 4 of 2019 as the lead file, and ordered the Kshs. 2.5 Million deposited by the 1st defendant, together with subsequent monthly rental income from the property's 12 apartments, transferred to a joint interest-earning account in the names of both parties' advocates pending determination. Costs of both applications were made costs in the cause.

Key legal issues

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01

Whether the Attorney General and DCIO Kakamega should be joined as interested parties

Holding

The joinder prayer failed because the applicant had already litigated the same issue in High Court Petition No. 61 of 2018 and the joinder principles were not satisfied

Reasoning

The court adopted the definition of an interested party from Black's Law Dictionary and the Supreme Court's test in the Trusted Society case, and Nambuye J's five guiding principles. On perusal of the annexures, the court found the notice of motion before it substantially similar to one filed in High Court Petition 61 of 2018, with only the DPP substituted by the Attorney General. The applicant therefore could not satisfy the joinder principles, and the prayer was dismissed.

p. 3
02

Whether a temporary injunction should issue against the 2nd defendant

Holding

A temporary injunction in the terms sought was not granted; instead an inhibition order issued over the suit property pending hearing and determination

Reasoning

Applying the Giella principles and the Mrao definition of a prima facie case, the court noted the applicant claimed he was coerced to sign transfer documents while the respondent maintained she had paid the full purchase price of Ksh. 30,000,000/= and involved the police to recover her property. The court found these contested facts could only be determined at full trial and, in the interest of justice, granted an inhibition order rather than the broad injunction sought.

p. 3
03

Whether ELC Case No. 81 of 2018 and ELC Case No. 4 of 2019 should be consolidated

Holding

The suits were consolidated with ELC Case No. 4 of 2019 as the lead file

Reasoning

Both suits relate to the same land sale agreement dated 30/8/2018 over parcel Butsotso/Shikoti/17938 between the same parties, though the plaintiff in one suit seeks specific performance of the agreement while the 2nd defendant in this suit seeks to have the agreement declared invalid. Applying the Nyati Security Guards principles on consolidation, the court found common questions of law and fact arising from the same transaction and certified the matters fit for consolidation.

p. 3
04

Whether the Kshs. 2.5 Million deposit and rental income from the suit property should be secured pending determination

Holding

The deposit was ordered transferred to a joint interest-earning account in the names of the parties' advocates, together with subsequent monthly rental income, to be held pending determination

Reasoning

The 1st defendant admitted in an affidavit having deposited Kshs. 2.5 Million with his advocates in favour of the 2nd defendant, and proposed to pay the Ksh. 30,000,000/= consideration in eight instalments. The plaintiff claimed entitlement to rental income of about Ksh. 250,000/= per month from 12 apartments under clause 4 of the sale agreement. The court found it necessary to secure both the deposit and the rental income pending determination of the consolidated suits.

p. 4

Legal principles established

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  • An interested party is one who has a recognizable stake in the proceedings and will be affected by the decision of the court either way
  • The guiding principles for joining an intending party are that he must be a necessary party, a proper party, there must be relief flowing from him, and his presence must be necessary for the court to effectively and completely adjudicate
  • The conditions for granting an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, the balance of convenience
  • A prima facie case is more than an arguable case; the evidence must show an infringement of a right and the probability of the applicant's case upon trial
  • Suits may be consolidated where they are pending in the same court, raise common questions of law or fact, arise out of the same transaction, or where consolidation is otherwise desirable

Court orders

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  1. 1.The prayer to join the Attorney General and DCIO Kakamega as interested parties was refused
  2. 2.An inhibition order issued against the suit property pending hearing and determination of the matter
  3. 3.Kakamega ELC Case No. 81 of 2018 and ELC Case No. 4 of 2019 consolidated for purposes of being heard and determined together
  4. 4.The file relating to ELC Case No. 4 of 2019 designated the lead file for filing further pleadings and recording of court proceedings
  5. 5.The sum of Kshs. 2.5 Million deposited by the 1st defendant with Onganda & Associates at Family Bank Limited be transferred forthwith to a joint interest earning account in the names of the 1st and 2nd defendants' advocates on record, together with subsequent monthly rental income from the suit property, to be held pending determination of the suits or further orders
  6. 6.Costs of the second application to be in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3, 3A, 6
  • Civil Procedure RulesOrder 1 rule 10, Order 11 rule 3, Order 40 rules 2 & 2(3), Order 51 rule 1
  • Land Control Actconsent of the Land Control Board (as referred to in grounds)

Cases cited (5)

  • Trusted Society Of Human Rights v Mumo Matemo & 5 others
    [2014] eKLR
  • Joseph Njau Kingori vs. Robert Maina Chege & 3 others
    [2002] eKLR
  • Giella vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd & 2 others
    (2003)
  • Nyati Security Guards & Services Ltd V Municipal Council of Mombasa
    (2000) eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court under the Environment and Land Court Act, on applications under sections 3, 3A, 1A and 1B of the Civil Procedure Act and Orders 1, 11, 40 and 51 of the Civil Procedure Rules

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, "Melissa Muhonja Mmata v Lawrence Mmata Chore & another; Attorney General & another (Interested Parties) [2019] KEELC 2593 (KLR)", Case Analysis (2019). ELC Case No. 81 of 2018 (consolidated with ELC Case No. 4 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2593/eng@2019-07-04

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