Samvo Limited v Delta Haulage Services Limited & another; Christopher Mugonye Wamae & another (Interested Parties) [2019] KEELC 5039 (KLR)
The bottom line
#A Kenyan court allowed a valuer access to disputed land for a counter-claim but threw out the owner's application as an abusive delaying tactic.
What this practically means
#Executive summary
#Key legal issues
#Competency of an affidavit sworn before filing of an application
An affidavit sworn on 25th February 2019 and filed on 28th February 2019 in support of an application, where a counter-claim is already on record, is not defective; Wahinya v Wahinya (affidavit sworn before a suit was filed) was distinguished
Mr. Mwenesi relied on Wahinya v Wahinya, where Chesoni J held an affidavit sworn in support of an injunction before a suit was filed valueless. The court held that decision irrelevant because here a counter-claim already existed and the affidavit post-dated but was filed with the application. The notarisation in China without translation was also held unobjectionable since nothing required translation from Chinese to English.
Valuation access in support of a counter-claim for indemnity
Granted; the grant does not endorse the first Defendant's occupation, as ownership remains for the court to determine on evidence
The second Defendant pleaded a counter-claim for indemnity should the property be held to belong to another. A valuation report is necessary to quantify the indemnity. Granting access would not endorse the first Defendant's position because the court will determine true ownership on the evidence. The court accordingly allowed access for M/s Muchuku to value the disputed property.
Plaintiff's application for inspection, evidence-gathering and securing the property
Dismissed as an abuse of process intended to delay the suit; deponents lacked authority; existing orders already secured the property
The application was filed on a hearing date and derailed three hearing days. The supporting deponents were not associated with the Plaintiff and had no authority to act for the company. The Plaintiff had failed to comply with directions and left prior applications unprosecuted. Orders by Osiemo J (2007) and Gacheru J (2014) already secured the property, and the Plaintiff should instead avail its witnesses so the case could be concluded.
Legal principles established
#- A valuation report may be ordered where a counter-claim seeking indemnity requires the value of the suit property to be determined
- An application for a site visit must be made at an appropriate time and when necessary, having regard to the circumstances of the case
Court orders
#- 1.An order directing the first Defendant to grant the second Defendant's valuer M/s Muchuku access to the disputed property variously described as L.R No. Nairobi Block 17/557, L.R 2/75, L.R 2/694, L.R 2/695 or L.R 17/338 for valuation
- 2.Costs of the second Defendant's application to be in the cause
- 3.Dismissal of the Plaintiff's application dated 4th March 2019 with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over a dispute on ownership of land (suit property claimed under the Government Lands Act)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samvo Limited v Delta Haulage Services Limited & another; Christopher Mugonye Wamae & another (Interested Parties) [2019] KEELC 5039 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5039/eng@2019-04-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.