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ELCDismissedNot stated in the judgment as provided· [2020] KEELC 2004 (KLR)

Tazmin Shiffique Allibhai v Shaffique Allibhai & another; I&M Bank Kenya Limited (Interested Party) [2020] KEELC 2004 (KLR)

Environment and Land Court
18 June 2020
3,392 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 wife could not stop a bank auctioning land because the property belonged to a company, not to her personally.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Thika (L. Gacheru, J) on a Notice of Preliminary Objection dated 30th April 2020 by the Interested Party (a bank/chargee) and a Notice of Motion dated 22nd April 2020 by the Plaintiff seeking maintenance of status quo and an injunction restraining the sale of LR No. 9104/121. The Plaintiff, the estranged wife of the 1st Defendant, alleged that her husband fraudulently caused the suit property to be registered in the name of the 2nd Defendant, his wholly owned company, without her consent, and then charged it to the Interested Party to secure a loan of about Kshs. 30,000,000 without spousal consent; following default the Interested Party intended to auction the property. The Court framed two issues: whether the preliminary objection was merited and whether the Plaintiff was entitled to the orders sought. Applying Mukisa Biscuits, Oraro v Mbaja and Quick Enterprises, the Court held that jurisdiction and locus standi are pure points of law. Following Lydia Nyambura Mbugua v Diamond Trust Bank, it found the ELC has jurisdiction over disputes on charges and the chargee's sale process. However, since the suit property was registered to a limited liability company and the Plaintiff adduced no evidence of ownership or of any link to the charge, and since even a director cannot sue on behalf of a juristic person, the Plaintiff lacked locus standi. The objection was upheld and the entire suit, together with the application, was dismissed with costs to the Interested Party.

Key legal issues

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01

Whether the Notice of Preliminary Objection is merited (jurisdiction and locus standi)

Holding

The Court held it has jurisdiction (dispute concerns land and chargee sale process), but the Plaintiff lacks locus standi; the objection is upheld.

Reasoning

The dispute over the validity of the charge and the chargee's sale process falls within the ELC's jurisdiction under the Land Act and Land Registration Act, following Lydia Nyambura Mbugua v Diamond Trust Bank. On locus standi, the suit property is registered to a limited liability company, Kifaru Investments Limited; the Plaintiff provided no evidence of ownership or of any link to the charge. Even a director could not sue on behalf of the juristic person. The priority-of-interests limb of the objection was not a proper preliminary objection as it required ascertainment of facts.

p. 4
02

Whether the Plaintiff is entitled to the injunctive and status quo orders sought

Holding

The Plaintiff is not entitled to the orders sought because, lacking locus standi, she failed to establish a prima facie case with probability of success.

Reasoning

Applying the Giella v Cassman Brown criteria as restated in Kibutiri v Kenya Shell and Mrao v First American Bank, a prima facie case requires an apparently infringed right. Since the Plaintiff had no locus standi, no prima facie case existed; once one limb of Giella collapses, the rest collapse automatically. The dismissal of the suit followed from the upheld preliminary objection.

p. 4

Legal principles established

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  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or judicial discretion exercised.
  • The Environment and Land Court has jurisdiction over disputes concerning charges and the process of sale by a chargee under the Land Act and Land Registration Act.
  • Locus standi signifies a right to be heard and requires sufficiency of interest to sustain standing to sue.
  • A limited liability company is a juristic person that sues and is sued in its own name; even a director or spouse cannot bring suit on its behalf.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 30th April 2020 is upheld on the ground that the Plaintiff/Applicant has no locus standi to bring the suit.
  2. 2.The Plaintiff/Applicant's suit is dismissed entirely together with the Notice of Motion Application dated 22nd April 2020 with costs to the Interested Party.

Authorities

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Legislation

  • Land Actsection 103
  • Land Registration Act
  • Registered Land Act (repealed)
  • Law of Contracts Act
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (13)

  • Mukisa Biscuits Manufacturing Co. Ltd v West End Distributors Ltd
    (1969) EA 696
  • Quick Enterprises Ltd v Kenya Railways Corporation
    Kisumu HCCC No.22 of 1999
  • Oraro v Mbaja
    (2005) 1 KLR 141
  • Lydia Nyambura Mbugua v Diamond Trust Bank Kenya Limited & another
    [2018] eKLR
  • Stephen Kibowen v Agricultural Finance Corporation
    (2015) eKLR
  • Law Society of Kenya v Commissioner of Lands & Others
    Nakuru High Court Civil Case No.464 of 2000
  • Alfred Njau and Others v City Council of Nairobi
    (1982) KAR 229
  • National Environmental Tribunal v Overlook Management Limited & 5 Others
    (2019) eKLR
  • Elendu v Ekwoaba
    (1998) 12 NWLR (Pt.578) 320
  • Giella v Cassman Brown & Co. Ltd
    1973 EA 358
  • Kibutiri v Kenya Shell
    Nairobi High Court Civil Case No.3398 of 1980 (1981) KLR
  • E.A Industries v Trufoods
    (1972) EA 420
  • Mrao Ltd v First American Bank of Kenya
Jurisdiction invoked
Article 162(2)(b) / Environment and Land Court Act jurisdiction over disputes relating to land (implied from the court's finding on jurisdiction under the Land Act and Land Registration Act)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Tazmin Shiffique Allibhai v Shaffique Allibhai & another; I&M Bank Kenya Limited (Interested Party) [2020] KEELC 2004 (KLR)", Case Analysis (2020). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2004/eng@2020-06-18

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