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ELCPartially AllowedELC Cause No. 118 of 2017· [2020] KEELC 3314 (KLR)

Mara North Holdings Limited v Saruni Kalamet Sengeny & 2 others [2020] KEELC 3314 (KLR)

Environment and Land Court
10 March 2020
862 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Narok cancelled a fraudulent land surrender and sub-division, restoring the company's lease and barring any sale of the land.

What this practically means

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Executive summary

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The plaintiff, Mara North Holdings Limited, sued the 1st defendant, the 2nd defendant (a company said to be of Chinese nationality) and the District Lands Registrar, Narok County, challenging transactions over land parcel Cis Mara/Koiyaki/Dagurugurueti/244. It claimed it held a registered 13-year-and-4-month lease dated 20th March 2012 over the parcel, and that in April 2013 the defendants fraudulently prepared a surrender of that lease, causing the land to be sub-divided into parcels 3703 (registered in the 1st defendant's name) and 3702 (registered in the 2nd defendant's name following a Land Board consent it contended was illegally obtained). The plaint sought permanent and mandatory injunctions, declarations of nullity, mesne profits and costs. The 1st defendant entered appearance but filed no defence; the 2nd and 3rd defendants neither entered appearance nor filed defences, and the suit proceeded ex parte. Mohammed Kullow J found the plaintiff's evidence uncontroverted and proved on a balance of probabilities. The court granted a permanent injunction restraining the 1st and 2nd defendants from encumbering the sub-divided parcels; declared the surrender of lease, the sub-division, and the Land Board Consent null and void; declared the plaintiff's 2012 lease valid and in force; and ordered the 3rd defendant to rescind and reverse the registration of the surrender and the sub-division. Mesne profits were refused for want of proof of loss. Costs were awarded to the plaintiff against the defendants jointly and severally.

Key legal issues

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01

Effect of undefended suit on proof of the plaintiff's case

Holding

The plaintiff's uncontroverted evidence proved the case on a balance of probabilities, entitling it to the declarations and injunctions sought

Reasoning

The defendants, though served or having entered appearance, neither filed defences nor attended the hearing. The 1st defendant filed a memorandum of appearance but no defence; the 2nd and 3rd defendants entered neither appearance nor defence. The suit therefore proceeded ex parte, and in the absence of contrary evidence the plaintiff's allegations of fraud and illegality in the surrender, sub-division and transfer stood unchallenged and proved on a balance of probabilities.

p. 2
02

Entitlement to mesne profits

Holding

Mesne profits were refused because no evidence of loss was proved

Reasoning

Although the plaint sought mesne profits from the date of the alleged illegal surrender of lease, a claim for mesne profits must be proved with evidence of actual loss. The plaintiff led no such evidence, so the court declined to grant that head of relief while granting all others, resulting in a partially successful suit.

p. 2

Legal principles established

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  • Uncontroverted evidence may be sufficient to prove a case on a balance of probabilities where the defendant does not appear or file a defence

Court orders

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  1. 1.A permanent injunction restraining the 1st and 2nd defendants from selling, leasing, charging or in any manner encumbering parcels Cis-Mara/Koiyaki/Dagurugurueti/3702 and 3703
  2. 2.A declaration that the surrender of lease dated 4th April 2013 over Cis Mara/Koiyaki/Dagurugurueti/244 is uncontractual, fraudulent, illegal and therefore null and void
  3. 3.A declaration that the sub-division of parcel Cis Mara/Koiyaki/Dagurugurueti/244 into parcels 3702 and 3703 is uncontractual, fraudulent, illegal and therefore null and void
  4. 4.A mandatory injunction compelling the 3rd defendant to rescind and/or reverse the registration of the surrender of lease dated 4th April 2013
  5. 5.A mandatory injunction compelling the 3rd defendant to rescind and/or reverse the sub-division of parcel Cis Mara/Koiyaki/Dagurugurueti/244 into parcels 3702 and 3703
  6. 6.A declaration that the Land Board Consent for the transfer of parcel 3702 from the 1st to the 2nd defendant is illegal and null and void
  7. 7.A declaration that the plaintiff's registered lease dated 20th March 2012 over parcel Cis Mara/Koiyaki/Dagurugurueti/244 is legally valid and in force
  8. 8.Costs of the suit awarded jointly and severally against the defendants
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (ELC Cause No. 118 of 2017)

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, "Mara North Holdings Limited v Saruni Kalamet Sengeny & 2 others [2020] KEELC 3314 (KLR)", Case Analysis (2020). ELC Cause No. 118 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3314/eng@2020-03-10

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