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ELCPartially Allowed· [2021] KEELC 4227 (KLR)

Moiz Gulamhussein Nurbhai v Burhan Gulamhussein Noorbhai [2021] KEELC 4227 (KLR)

High Court of Kenya
23 February 2021
3,843 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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Two brothers are registered as tenants-in-common in equal shares of LR 209/346/44 on Riverside Drive, Nairobi, with the shares of two deceased brothers having vested in them equally. The plaintiff sued seeking an order compelling the defendant to consent to partition under section 94 of the Land Registration Act and an account and remittance of his share of rental income collected by the defendant since 2009. The defendant counterclaimed for a declaration that he owns two-thirds, contending the plaintiff had sold his quarter share in the 1970s, plus reimbursement of management expenses of over Kshs 9.7 million. Before the court were the plaintiff's application for preservation of rental income in a joint interest earning account and accounts, and the defendant's application for security for costs of Kshs 10 million and dismissal of the suit as statute-barred. The court dismissed the defendant's application, holding that the plaintiff, as a registered co-owner of valuable property, was not an impecunious foreigner and his share could satisfy any costs award; and that the claim was not wholly statute-barred because the defendant, managing the property and collecting rents, stood in a fiduciary position, bringing the claim within section 20 of the Limitation of Actions Act, with any time-barred rent capable of being severed. The plaintiff's application succeeded: the defendant was ordered to deposit all rental income in a joint interest earning account within 30 days and to file a full statement of accounts within 60 days. The defendant was ordered to bear the costs of both applications. The substantive suit and counterclaim proceed to hearing.

Key legal issues

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01

Security for costs against a foreign-resident litigant

Holding

Refused; the plaintiff is a registered co-owner of valuable land in Nairobi whose share can satisfy costs

Reasoning

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.

p. 4
02

Whether the suit is statute-barred under section 4(3) of the Limitation of Actions Act

Holding

Not wholly statute-barred; the claim is one to recover trust property from a fiduciary co-owner, governed by section 20 of the Act

Reasoning

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.

p. 4
03

Preservation of rental income in a joint interest earning account

Holding

Granted; there is founded apprehension that rental income will continue to disappear

Reasoning

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.

p. 5
04

Accounts at interlocutory stage

Holding

Granted; the plaintiff is justified in demanding accounts before trial

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.The defendant's application dated 24/10/2019 is dismissed for lack of merit
  2. 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. 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. 4.Both parties to file and serve bound, paginated and indexed bundles containing pleadings, written statements and documentary evidence within 90 days
  5. 5.The defendant shall bear costs of the two applications

Authorities

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Legislation

  • Land Registration ActSection 94(1)
  • Land ActSection 2 (definitions of joint tenancy and tenancy-in-common)
  • Constitution of KenyaArticle 40
  • Civil Procedure RulesOrder 26 rule 1
  • Civil Procedure RulesOrder 40 rule 1
  • Limitation of Actions ActSection 4(3)
  • Limitation of Actions ActSection 20

Cases cited (9)

  • Marco Toools & Explosives Ltd v Mamujee Brothers Ltd
    (1988) KLR 730
  • Guff Engineering (East Africa) Ltd v Amrik Sighn Kalji
  • Metal K Trading Ltd v More Than Conquerors company Ltd & 2 others
    (2020) eKLR
  • Gatirau Peter Munya v Dickson Mwenda Githinji & 2 others, CA No 38 of 2013
    [2014] eKLR
  • Shah & 2 others v Shah & 2 others
    [1982] eKLR
  • Pancras T Swai v Kenya Breweries Ltd
    [2004] eKLR
  • Patrick Ngeta Kimanzi v Marcus Mutua Muturi & 2 others
    [2013] eKLR
  • Joseph Mungai Wanene v Housing Finance Company of Kenya Ltd
    [2017] eKLR
  • Kennneth Ouma Wasike v Mumias Outgrowers Sacco Society Ltd t/a Nitumize Sacco Society Ltd
    (2017) eKLR
Jurisdiction invoked
Original civil jurisdiction of the High Court; Civil Procedure Rules (Orders 26 and 40); Land Registration Act

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, "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.