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ELCDismissedNot stated in the excerpt (suit concerning land parcel Kitale Municipality Block 11/18)· [2021] KEELC 2993 (KLR)

Zurah Night Sakwa v National Housing Corporation & 3 others [2021] KEELC 2993 (KLR)

Environment and Land Court
9 June 2021
1,361 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 threw out an injunction bid over Kitale land because the applicant hid an existing High Court preservation order and lacked standing as a sole administrator.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kitale (Mwangi Njoroge, J) on a notice of motion dated 5 March 2021 in which the plaintiff, purporting to act as administratrix of the estate of Charles Lelechi Lugano, sought a temporary injunction restraining the defendants from disposing of, interfering with or dealing in land parcel Kitale Municipality Block 11/18 in Trans-Nzoia. The case against the 1st and 2nd defendants had been withdrawn. The 3rd and 4th defendants opposed, raising lack of locus standi, res judicata, abuse of process, and the existence of High Court preservation orders in Kitale HCC Misc. Application No. E001 of 2021 (EACC vs Zurah Night Sakwa) prohibiting interference with the same land. The court found the injunction sought would conflict with those preservation orders, that the plaintiff had deliberately concealed the High Court case, and held the application res judicata and an abuse of process. On standing, the court noted the grant named three administrators, the suit property was not listed in the estate, and no consent of the co-administratrix was exhibited; a sole administrator cannot sue without the others unless the omission is explained. The application was dismissed with costs to the respondents. The court further ordered the joinder of the Ethics and Anti-Corruption Authority as 5th defendant, and directed the plaintiff to amend the plaint within 14 days, failing which the suit would stand automatically dismissed.

Key legal issues

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01

Res judicata / abuse of process

Holding

The application is res judicata and an abuse of the court process because the orders sought conflict with High Court preservation orders in Kitale HCC Misc. Application No. E001 of 2021 (EACC vs Zurah Night Sakwa), whose existence the plaintiff deliberately withheld

Reasoning

The court perused the cited High Court case and found preservation orders prohibiting interference with the same land. Granting an injunction would run contrary to those orders and could license interference with the land. The plaintiff's failure to disclose the High Court case compounded the abuse. The court declined to issue orders contradicting those already obtained by EACC.

p. 2
02

Locus standi of a sole administrator

Holding

The plaintiff lacked standing: the suit property was not part of the deceased's estate, the grant names three administrators, and she neither joined them nor obtained their consent

Reasoning

The claim rested on letters of administration and a confirmed grant, but the suit property was not listed among the estate's assets. The grant showed three administrators, and no consent of the co-administratrix was exhibited. Without demonstrated beneficial interest or proper authority, she could not show a prima facie case or irreparable loss under Giella v Cassman Brown.

p. 2
03

Joinder of EACC

Holding

The EACC should be enjoined as the 5th defendant so all matters in controversy can be resolved

Reasoning

The court accepted the respondents' submission that the Ethics and Anti-Corruption Authority, which had obtained preservation orders over the suit land in the High Court, was a necessary party whose participation would enable full resolution of the controversy. It directed joinder and amendment of the plaint within 14 days.

p. 2

Legal principles established

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  • A single administrator is not entitled to bring proceedings in respect of an estate without joining the other administrators unless the omission is sufficiently explained to court beforehand
  • A court should not issue orders that would run contrary to or befog preservation orders already issued by a court of coordinate/concurrent jurisdiction

Court orders

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  1. 1.The notice of motion dated 5/3/2021 dismissed with costs to the respondents
  2. 2.The Ethics and Anti-Corruption Authority enjoined as the 5th defendant in the suit
  3. 3.The plaintiff to amend the plaint to include the said authority within 14 days, in default of which the suit shall stand automatically dismissed

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule (1)
  • Civil Procedure ActSections 3A & 63(e)
  • Civil Procedure RulesOrder 1 Rule 13

Cases cited (9)

  • Giella Vs Cassman Brown
    1973 EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd Ans 2 Others
    2003 KLR 125
  • Michael Gitau V Pamela Savage & 4 Others
    Civil Appeal No 244 of 1999 (unreported)
  • Francis Githinji Karobia Vs Stephen Kageni Gitau
    Civil Case No 53 of 2005 (Unreported)
  • Law Society of Kenya Vs Commissioner Of Lands & Others
    Nakuru HCCC No 464 of 2000
  • Alfred Njau & Others Vs City Council Of Nairobi
    1982 KAR 229
  • Kipsiwo Community Self Help Group Vs Attorney General And 7 Others
    2013 eKLR
  • Nguruman Ltd Vs Jan Bonde Nielsen & 2 Others
    CA No. 77 of 2012
  • Kitale HCC Misc. Application No. E001 of 2021 - EACC vs Zurah Night Sakwa
Jurisdiction invoked
Environment and Land Court jurisdiction under Order 40 Rule 1 of the Civil Procedure Rules, Sections 3A & 63(e) of the Civil Procedure Act (interlocutory injunction application in a land suit)

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, "Zurah Night Sakwa v National Housing Corporation & 3 others [2021] KEELC 2993 (KLR)", Case Analysis (2021). Not stated in the excerpt (suit concerning land parcel Kitale Municipality Block 11/18). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2993/eng@2021-06-09

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