Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNotice of Motion dated 10th August 2020 and Notice of Motion dated 5th July 2021 (ELC suit, Milimani)· [2021] KEELC 213 (KLR)

Lakeview Development Limited v Belgo Holdings Limited & another [2021] KEELC 213 (KLR)

Environment and Land Court
9 December 2021
6,373 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

#

A Nairobi land court froze two disputed properties pending trial and refused to pause the case while an appeal runs, citing the need for expeditious justice.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Milimani, delivered by Oguttu Mboya J on 9th December 2021, determined two interlocutory applications heard together: the Plaintiff's Notice of Motion dated 10th August 2020 seeking temporary injunctions restraining the 1st Defendant from selling, transferring, leasing or charging the suit properties (L.R. No. 28586 and L.R. No. 28587), and the 1st Defendant's Notice of Motion dated 5th July 2021 seeking a stay of all further proceedings pending hearing of Civil Appeal E345 of 2021 against a prior ruling of a differently constituted bench of the same court. The dispute concerns a 1995 sale agreement over the suit properties for Kshs. 20 million, with the Plaintiff contending the purchase price was never paid and that it holds a claim in fraud and trust, and the 1st Defendant contending payment was acknowledged and title transferred. The court framed five issues covering the classic prima facie case, irreparable loss and balance of convenience tests, and the twin tests for stay of proceedings. It found the Plaintiff established a prima facie case with overwhelming chances of success, given serious evidential disputes on payment, the Land Control Board consent (which the 1st Defendant's own pleading admitted was not applied for), and trust pleas. Irreparable loss was proven since the registered proprietor could alienate the properties, and the balance of convenience favoured preservation. On the stay application, though sufficient cause was shown, the court dismissed it, holding the appeal would not be rendered nugatory and that a stay would defeat Article 159(2)(b)'s mandate for expeditious disposal. Costs of each application were ordered to abide the cause and the appeal respectively.

Key legal issues

#
01

Prima facie case with a chance of success

Holding

The Plaintiff established a prima facie case with overwhelming chances of success

Reasoning

The sale agreement of 29 May 1995 and non-payment of the Kshs. 20 million consideration were in serious dispute; the 1st Defendant's own pleading that no Land Control Board consent was applied for under Sections 6 and 8 of the Land Control Act raised a triable legality issue; the plea of implied, resulting and constructive trust raised further triable issues. Res judicata and limitation objections were unavailable, having been dealt with in the Ruling of 10th May 2021 by a court of concurrent jurisdiction. The court, on an interlocutory application, made no final findings of fact.

p. 5
02

Irreparable loss

Holding

Irreparable loss was proven since the registered 1st Defendant could alienate or charge the suit properties, destroying the substratum of the suit

Reasoning

Sections 24 and 25 of the Land Registration Act, 2012 vest absolute ownership in the registered proprietor, enabling alienation. Any sale, alienation or charge would substantially destroy the foundation of the suit, and such loss could not adequately be compensated in damages.

p. 6
03

Balance of convenience

Holding

The balance of convenience tilts in favour of the Plaintiff, as preservation of the suit properties serves both parties and the doctrine of lis pendens favours conservation of the substratum of the dispute

Reasoning

Both parties rival claims over the properties; preserving them ensures the ultimate winner takes the properties without auxiliary proceedings. Lis pendens, applicable upon active prosecution, goes hand in hand with the balance of convenience.

p. 7
04

Stay of proceedings pending appeal

Holding

Sufficient cause was shown for a stay of proceedings, as filing a Notice of Appeal suffices to constitute an appeal under Order 42 Rule 6(4) of the Civil Procedure Rules

Reasoning

Applying the Ringera J test in Re Global Tours & Travel Ltd, stay of proceedings is a discretionary remedy exercised in the interest of justice. The pendency of Civil Appeal E345 of 2021 against the Ruling of 10th May 2021, in which striking out of the suit was dismissed, constituted sufficient cause.

p. 7
05

Nugatory appeal test

Holding

The 1st Defendant's appeal would not be rendered nugatory if stay of proceedings were not granted; accordingly the stay application was dismissed

Reasoning

If the appeal succeeds, the suit will stand struck out at whatever stage of hearing, and costs can be remedied by the Court of Appeal. Granting stay would hold the subject matter in abeyance and defeat Article 159(2)(b) of the Constitution on expeditious disposal.

Legal principles established

#
  • A Torrens/RLA title is defeasible on proof of mistake, misrepresentation, fraud, illegality or total failure of consideration; indefeasibility is not established by merely waving a title document
  • Parties are bound by their pleadings; a court cannot adjudicate on claims or defences not raised by the parties
  • A constructive trust relating to land subject to the Land Control Act is enforceable
  • In interlocutory applications the court must not make final findings of fact on disputed affidavits but weigh the relative strength of each side's propositions
  • Definition of a prima facie case in civil applications
  • Irreparable injury is injury that cannot adequately be compensated by damages; speculative injury will not suffice
  • Lis pendens applies upon active prosecution of proceedings, not merely upon filing of suit
  • For purposes of a stay of proceedings pending appeal, a Notice of Appeal suffices to constitute an appeal
  • Stay of proceedings is a discretionary remedy exercised in the interest of justice, weighing expeditious disposal, arguability of the appeal and expeditiousness of the application

Court orders

#
  1. 1.The Notice of Motion Application dated the 10th August 2020 (Plaintiff's application for temporary injunction) is merited and is allowed.
  2. 2.The Notice of Motion Application dated the 5th July 2021 (1st Defendant's application for stay of proceedings pending appeal) is devoid of merit and is dismissed.
  3. 3.Costs of the application dated 10th August 2020 shall abide the cause; costs of the application dated 5th July 2021 shall abide the appeal before the Court of Appeal.

Authorities

#

Legislation

  • Land Control ActSections 6 and 8
  • Civil Procedure ActSection 7
  • Limitation of Actions Act, Chapter 22, Laws of KenyaSections 4, 27 and 28
  • Land Registration Act, 2012Sections 24 and 25
  • Civil Procedure Rules, 2010Order 42 Rule 6(4)
  • Constitution of Kenya, 2010Article 159(2)(b)

Cases cited (13)

  • Elizabeth Wanjiru Githinji & 29 others vs Kenya Urban Roads Authority
  • Independent Electoral & Boundaries Commission & Another vs Stephen Mutinda Mule & Another
    [2013] eKLR
  • Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri
    [2014] eKLR
  • Chase International Investment Corporation and Another vs. Laxman Keshra and Others
    [1978] KLR 143; [1976-80] 1 KLR 891
  • Mbuthia v Jimba Credit Finance Corporation & another
    [1988] eKLR
  • Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
  • Nguruman v Jan Bonde Nielsen
    (2014) eKLR
  • Co-operative Bank of Kenya Limited v Patrick Kangethe Njuguna & 5 others
    [2017] eKLR
  • Naftali Ruthi Kinyua v Patrick Thuita Gachure & Another
    [2015] eKLR
  • Jagan Singh v. Dhanwanti
    [2012] 2 SCC 628
  • Vinod Seth v. Devinder Bajaj & Another
    Civil Appeal No. 4891 of 2010
  • Re Global Tours & Travel Ltd
    HCWC No. 43 of 2000 (unreported)
  • David Morton Silverstein vs Atsango Chesoni
    [2002] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (interlocutory applications within a pending suit)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Lakeview Development Limited v Belgo Holdings Limited & another [2021] KEELC 213 (KLR)", Case Analysis (2021). Notice of Motion dated 10th August 2020 and Notice of Motion dated 5th July 2021 (ELC suit, Milimani). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/213/eng@2021-12-09

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