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ELCPartially AllowedELC No. 73 of 2019· [2021] KEELC 2090 (KLR)

Saulo Nzyoka Mulili v Stephen Kasia Nzyoka & another [2021] KEELC 2090 (KLR)

Environment and Land Court
10 September 2021
CMC. G. Mbogo
2,533 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court lifted a caution on family land and ordered it split equally between two households, but refused an injunction because proof of sales was too weak.

What this practically means

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Executive summary

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The Plaintiff, administrator of the estate of Nzyoka Mulili who died in 1983 leaving two wives, sued his step brother (1st Defendant) and the Makueni District Land Registrar (2nd Defendant). He sought a permanent injunction restraining the 1st Defendant from caveating, disposing of or selling land parcel Okia/Mukuyuni/1213 (3.71 Ha) registered in his name in trust for the estate, an order compelling the 2nd Defendant to lift the caution registered by the 1st Defendant and to subdivide the land into two equal halves for the deceased's two households, plus costs. The 1st Defendant denied the claim, alleging the Plaintiff fraudulently obtained a death certificate and letters of administration and procured the title without authority; he sought dismissal of the suit and cancellation of the title. The 2nd Defendant did not enter appearance. The court adopted the two issues framed by the Plaintiff's counsel: whether the caution was rightfully lodged, and whether the Plaintiff was entitled to a permanent injunction. On the first, the court held the caution must be lifted because the 1st Defendant never sought revocation of the grant and failed to prove the pleaded particulars of fraud; parties being bound by their pleadings, he could not seek cancellation of the title, for which there was no counterclaim prayer. On the second, the injunction was refused: the alleged sales to undisclosed third parties were tenuous and those parties had not been heard. The claim partially succeeded. The court ordered unconditional withdrawal of the caution and subdivision of the parcel into two equal portions in the names of Saulo Nzyoka Mulili and Kitungwa Nzyoka, with each party bearing their own costs.

Key legal issues

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01

Whether the caution lodged by the 1st Defendant over Okia/Mukuyuni/1213 was rightfully lodged

Holding

The caution was not rightfully lodged and must be lifted, since the 1st Defendant never sought revocation of the grant issued to the Plaintiff and failed to prove the pleaded particulars of fraud

Reasoning

The 1st Defendant did not file summons for revocation of the grant issued to the Plaintiff, so the Plaintiff's registration in trust of the estate remained valid. Allegations of fraud in obtaining the death certificate and title were not proved; no criminal charges were preferred. Parties are bound by their pleadings, and the 1st Defendant's defence contained no prayer for cancellation of the title. There was therefore no basis for the caution, which had to be withdrawn.

p. 3
02

Whether the Plaintiff was entitled to a permanent injunction against the 1st Defendant

Holding

The prayer for a permanent injunction failed because the evidence of alleged sales to third parties was tenuous and the third parties were not disclosed or heard

Reasoning

The Plaintiff claimed the 1st Defendant had sold portions of the suit land to third parties but did not disclose who those third parties were. Granting a permanent injunction would operate against unidentified persons without affording them a chance to be heard. The evidence of the alleged sales was tenuous and insufficient to satisfy the requirements for a permanent injunction, so that head of relief was refused.

p. 3

Legal principles established

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  • Until a grant of letters of administration is revoked by the appropriate court, an administrator's registration in trust for an estate stands, and a party alleging fraudulent acquisition of title must prove the particulars of fraud pleaded
  • Parties are bound by their pleadings, and a court cannot grant relief not sought in the pleadings

Court orders

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  1. 1.An order directing the 2nd Defendant to unconditionally lift/withdraw the caution registered by the 1st Defendant on land parcel number Okia/Mukuyuni/1213 measuring 3.71 hectares registered in the Plaintiff's name
  2. 2.An order directing the 2nd Defendant to effect registration of the said land into two (2) equal portions or halves for the two deceased's households in the names of Saulo Nzyoka Mulili and Kitungwa Nzyoka
  3. 3.Each party to bear their own costs

Authorities

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Cases cited (2)

  • Giella -Vs- Cassman Brown & Co. Ltd
    [1973] EA 358
  • Pius Kipchirchir Kogo -Vs- Frank Kimeli Tena
    [2018] eKLR
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court (suit commenced by plaint dated 3rd October 2019)

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, "Saulo Nzyoka Mulili v Stephen Kasia Nzyoka & another [2021] KEELC 2090 (KLR)", Case Analysis (2021). ELC No. 73 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2090/eng@2021-09-10

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