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ELCOtherNot stated in judgment· [2022] KEELC 953 (KLR)

Marco Piroli v Mountsbay Real Estates Limited [2022] KEELC 953 (KLR)

Environment and Land Court
9 March 2022
MOM.A. Odeny
3,338 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Watamu apartment buyer won interim protection: the court ordered that the property remain untouched pending full trial, but refused the wider injunction he sought.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Malindi (M.A. Odeny, J) on a Notice of Motion dated 25th May 2021 by the Plaintiff, Marco Piroli, seeking a temporary injunction restraining the Defendant, Mounts Bay Real Estates Limited, from evicting him or interfering with his possession of Apartment No. 13 on Plot No. 1127 (Original No. 22/2), Title CR 65572/2, Watamu, plus an order for police enforcement and costs in the cause. The Applicant deponed that he purchased the leasehold from Erli Pier Angelo, taking possession on 16th October 2018 and registering the transfer on 12th November 2018, and that the Defendant mismanaged common areas and declined arbitration, prompting the dispute. The Defendant opposed, contending the transfer lacked its consent as required by the sub-lease dated 3rd June 2015 contrary to Sections 67 of the Land Act and 55 of the Land Registration Act, that no privity of contract existed, that the Applicant was not a bona fide purchaser, and that parallel arbitration proceedings before Kyalo Mbobu rendered the suit improper. The court framed two issues: whether a prima facie case for injunction was established and whether the application was proper given pending arbitration. It held the application was properly before it since the Respondent refused arbitration, acknowledged the court's jurisdiction and filed a counterclaim. Applying Giella v Cassman Brown and the lower-risk-of-injustice principle, the court found the Applicant's registration prima facie proof of ownership at the interlocutory stage, unrebutted, but declined to determine the substantive disputes. Instead of granting the injunction, the court ordered that status quo be maintained pending the hearing and determination of the suit.

Key legal issues

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01

Whether the Applicant established a prima facie case for temporary injunction

Holding

The Applicant's registration as owner of the leasehold interest is prima facie evidence of ownership at the interlocutory stage, and no contrary evidence had been tendered; the disputed issues of privity and bona fide purchase must await full trial

Reasoning

The court applied the Giella test but noted the disputed issues (bona fide purchaser status, privity of contract, validity of the transfer without consent) would be determined at the hearing. Determining them at the interlocutory stage would deny parties an opportunity to be heard. The Applicant remained registered owner in occupation, so maintaining status quo carried the lower risk of injustice.

p. 4
02

Whether the court application was proper given pending arbitration proceedings

Holding

The application was properly before the court as the Respondent refused to participate in arbitration, acknowledged the court's jurisdiction and filed a counterclaim

Reasoning

The Applicant had requested arbitration but the Respondent refused to participate or propose an arbitrator. The Respondent acknowledged the court's jurisdiction and filed a counterclaim in the suit, so the court proceeded to determine the application rather than declining jurisdiction on account of the pending arbitration before Kyalo Mbobu.

p. 4

Legal principles established

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  • At interlocutory stage the court is not precluded from expressing a prima facie view but cannot make conclusive findings on disputed facts
  • The court should take whichever course appears to carry the lower risk of injustice

Court orders

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  1. 1.Status quo to be maintained pending the hearing and determination of this case

Authorities

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Legislation

  • Land ActSection 67
  • Land Registration ActSection 55
  • Civil Procedure RulesOrder 21(1)

Cases cited (12)

  • Lawrence P. Mukiri Mungai, attorney of Francis Muroki Mwaura v Attorney General & 4 Others
    [2017] eKLR
  • Eunice Grace Njambi Kamau & Another v Attorney General & 5 Others
    [2013] eKLR
  • Agricultural Finance Corporation v Langetia Limited
    [1985] KLR
  • Muchendu v Waita
    [2003] KLR
  • Munyu Maina v Hiram Gathiha Maina
    [2013] eKLR
  • Daudi Kiptugen v Commissioner of Lands & 4 Others
    [2015] eKLR
  • Juma Nyamawi Ndungo & 5 Others v Attorney General; Mombasa Law Society (Interested Party)
    [2019] eKLR
  • Giella v Cassman Brown
  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR
  • Films Rover International
    (1986) 3 All ER 772
  • Francis Githinji Karobia v Stephen Kageni Gitau
    [2017] eKLR
  • Thomas Nyakamba Okong'o v The Co-operative Bank of Kenya Ltd
    [2012] eKLR
Jurisdiction invoked
Not expressly stated; court noted the Respondent acknowledged its jurisdiction and filed a counterclaim

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, "Marco Piroli v Mountsbay Real Estates Limited [2022] KEELC 953 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/953/eng@2022-03-09

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