Moiz Gulamhussein Nurbhai v Burhan Gulamhussein Noorbhai [2021] KEELC 4227 (KLR)
The bottom line
#Kenya's High Court refused to shut out a co-owner's rent claim and ordered the collecting brother to bank all rental income jointly and account fully.
What this practically means
#Executive summary
#Key legal issues
#Security for costs against a foreign-resident litigant
Refused; the plaintiff is a registered co-owner of valuable land in Nairobi whose share can satisfy costs
The defendant's own pleadings and affidavits admitted the plaintiff's co-ownership of suit property comprising four residential homes. The court reasoned the plaintiff was not a man of straw; if his claim failed, his share in the property would be available for liquidation to satisfy any costs award. The Munya criteria require proof of inability to pay, which was not established.
Whether the suit is statute-barred under section 4(3) of the Limitation of Actions Act
Not wholly statute-barred; the claim is one to recover trust property from a fiduciary co-owner, governed by section 20 of the Act
The defendant admitted managing the property and collecting rents without accounting. The court characterized him as a trustee managing property on behalf of the other co-owner, bringing the claim within section 20 which prescribes no limitation for a beneficiary recovering trust property. Alternatively, any statute-barred rent could be severed.
Preservation of rental income in a joint interest earning account
Granted; there is founded apprehension that rental income will continue to disappear
The defendant did not controvert that he had received rents since 2009 without accounting, while simultaneously claiming Kshs 9.7 million reimbursement from the plaintiff. This exposed the plaintiff to further loss and justified invoking Order 40 rule 1 of the Civil Procedure Rules to preserve the rental income pending trial.
Accounts at interlocutory stage
Granted; the plaintiff is justified in demanding accounts before trial
Considering the defendant's fiduciary status, his failure to render past accounts, and his claim for over Kshs 9.7 million as management expenses, the court held accounts were necessary both for the plaintiff's case and the defendant's counter-claim, and their production would facilitate effective preparation and fast-tracked hearing.
Legal principles established
#- The discretionary jurisdiction to order security for costs is exercised reasonably and judiciously, considering absence of known assets, insolvency, bonafides, conduct, and balancing access to justice against prejudice
- An applicant for security for costs must prove, not merely allege, that the respondent would be unable to pay costs if unsuccessful
- A co-owner who manages the property and receives rental income on behalf of the other co-owner stands in a fiduciary position, so limitation under section 20 of the Limitation of Actions Act does not bar the co-owner's claim
Court orders
#- 1.The defendant's application dated 24/10/2019 is dismissed for lack of merit
- 2.The defendant is directed to deposit all rental income from the developments on the suit property in a joint interest earning account to be opened within 30 days in the names of the Advocates of the two parties, pending hearing and determination of the suit
- 3.The defendant is directed to, within sixty (60) days, file in court and serve upon the plaintiff's advocates a full statement of accounts relating to all rental income and all expenses relating to the suit property from January 2009 to the date the joint interest earning account is opened and operationalized
- 4.Both parties to file and serve bound, paginated and indexed bundles containing pleadings, written statements and documentary evidence within 90 days
- 5.The defendant shall bear costs of the two applications
- Jurisdiction invoked
- Original civil jurisdiction of the High Court; Civil Procedure Rules (Orders 26 and 40); Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Moiz Gulamhussein Nurbhai v Burhan Gulamhussein Noorbhai [2021] KEELC 4227 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4227/eng@2021-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.