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ELCPartially AllowedEnvironment & Land Case 541 of 2017· [2019] KEELC 5102 (KLR)

BMM v EMM & 3 others (Environment & Land Case 541 of 2017) [2019] KEELC 5102 (KLR)

High Court of Kenya
7 February 2019
5,138 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~21 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This is an interlocutory ruling on the plaintiff's Notice of Motion dated 22nd August 2017 seeking a temporary injunction restraining the defendants from transferring the suit property, disclosure of the sale documents by the 2nd defendant, and deposit of the Kshs.15,800,000/- purchase price in a joint account. The plaintiff and the 1st defendant, formerly spouses, had bought the suit property in equal shares, with the 1st defendant executing a declaration of trust over half of it in the plaintiff's favour. After their divorce, and following a 13th December 2016 meeting at which the parties agreed to sell the property, the 1st, 2nd and 4th defendants sold the property to the 3rd defendant at Kshs.15,800,000/- and disbursed the proceeds without the plaintiff's participation, applying Kshs.6,635,000/- of his share to school fees and university costs for the children. Applying Giella v Cassman Brown and the mandatory injunction principles in Locabail and Shepherd Homes, the court found a prima facie case with probability of success and irreparable harm: the plaintiff had not been shown to have instructed the 4th defendant, the proceeds were to be held pending joint instructions, and the property was not to sell below Kshs.17,000,000/-. The 3rd defendant's innocent-purchaser claim was doubtful since his advocate knew of the trust. The application was allowed in terms of prayers 4 and 5 (documents to be supplied as photocopies); prayer 6 was declined as the proceeds had already been disbursed. The plaintiff was awarded the costs of the application.

Key legal issues

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01

Prima facie case and irreparable harm for temporary injunction

Holding

The plaintiff established a prima facie case with a probability of success against the defendants and demonstrated irreparable harm

Reasoning

It was undisputed that the 1st defendant held half the suit property in trust for the plaintiff, that he was entitled to 50% of the net proceeds, and that the parties had agreed at the 13th December 2016 meeting to sell the property and share proceeds. The court preferred the contemporaneous letter of 19th December 2016 recording that proceeds were to be held pending joint instructions and that the property was not to sell below Kshs.17,000,000/-. The sale at Kshs.15,800,000/- and unilateral disbursement breached that arrangement.

p. 7
02

Authority of the 4th defendant advocate to act for the plaintiff

Holding

The plaintiff's claim that the 4th defendant had no instructions is arguable; no evidence of instruction was placed before the court, and any earlier instructions were withdrawn in March 2017

Reasoning

The letter of 19th December 2016 showed the plaintiff was then represented by Letangule & Company Advocates, not Charles Koech & Associates. The 4th defendant placed no evidence of how or when he was instructed. The plaintiff wrote on 31st March 2017 denying instructions, yet the 4th and 2nd defendants went on to disburse up to Kshs.7,251,563/50 solely on the 1st defendant's instructions.

p. 7
03

Whether the 3rd defendant was an innocent purchaser without notice

Holding

The court was not satisfied at this interlocutory stage that the 3rd defendant was an innocent purchaser without notice of the plaintiff's interest

Reasoning

The 3rd defendant was represented in the transaction by the 2nd defendant, who was well aware of the plaintiff's interest, having written in February 2016 that the property was held by her client in trust for herself and the plaintiff. The assignment of lease was registered after the plaintiff objected. This was sufficient to raise a triable issue against the purchaser.

p. 8
04

Self-help application of sale proceeds to the plaintiff's Children's Court obligations

Holding

The defendants had no right to apply the plaintiff's share of proceeds to his children's school fees; the proper course was an attachment order from the Children's Court

Reasoning

Although the Children's Court had ordered the plaintiff to pay school fees, the 1st, 2nd and 4th defendants could not themselves seize and apply the plaintiff's share of the proceeds. Out of the plaintiff's net entitlement of Kshs.7,485,136/50, they paid Kshs.6,635,000/- to the 1st defendant without his consent or any court order authorising that payment.

p. 8

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with a probability of success and irreparable injury not compensable by damages, failing which the balance of convenience applies
  • A temporary mandatory injunction requires a very strong case with a higher likelihood of success than a prohibitory injunction
  • Advocates holding sale proceeds for parties may not disburse them without joint instructions from both parties where that was the instruction; a party's share of proceeds cannot be applied to settle that party's debts without consent or court order

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 22nd August 2017 allowed in terms of prayers 4 and 5 thereof
  2. 2.In terms of prayer 5, the 2nd defendant to provide photocopies of the documents required
  3. 3.The plaintiff to have the costs of the application

Authorities

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Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd.
    (1973) E.A 358
  • Locabail International Finance Limited v AgroExport
    (1988) 1 All ER 901
  • Shepherd Homes Ltd. v Shandahu
    [1971] 1 Ch.304
Jurisdiction invoked
Original civil jurisdiction (temporary injunction application under the plaint dated 22nd August 2017; specific statutory basis not cited in the ruling)

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, "BMM v EMM & 3 others (Environment & Land Case 541 of 2017) [2019] KEELC 5102 (KLR)", Case Analysis (2019). Environment & Land Case 541 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/5102/eng@2019-02-07

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