BMM v EMM & 3 others (Environment & Land Case 541 of 2017) [2019] KEELC 5102 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Prima facie case and irreparable harm for temporary injunction
The plaintiff established a prima facie case with a probability of success against the defendants and demonstrated irreparable harm
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.
Authority of the 4th defendant advocate to act for the plaintiff
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no instructions is arguable; no evidence of instruction was placed before the court, and any earlier instructions were withdrawn in March 2017
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.
Whether the 3rd defendant was an innocent purchaser without notice
The court was not satisfied at this interlocutory stage that the 3rd defendant was an innocent purchaser without notice of the plaintiff's interest
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.
Self-help application of sale proceeds to the plaintiff's Children's Court obligations
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
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.
Legal principles established
#- 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
#- 1.The plaintiff's Notice of Motion dated 22nd August 2017 allowed in terms of prayers 4 and 5 thereof
- 2.In terms of prayer 5, the 2nd defendant to provide photocopies of the documents required
- 3.The plaintiff to have the costs of the application
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.