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ELCPartially AllowedNot stated in the excerpt· [2022] KEELC 1582 (KLR)

Ann Kinanu Kaburu v Oriano Mabellini & 3 others [2022] KEELC 1582 (KLR)

Environment and Land Court of Kenya
10 February 2022
JOJ. O. Olola
1,986 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court ordered disputed property rents to be deposited in court pending trial, protecting an heir's claim without deciding who owns the land.

What this practically means

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Executive summary

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By a Notice of Motion dated 10th March 2021, the Plaintiff, suing as guardian ad litem and heir of the estate of her late husband Isaiah Mabellini, sought orders that the 1st and 2nd Defendants deposit in court rental income of Euros 40,000 for 2020 and Euros 10,000 quarterly thereafter pending trial, or alternatively that the 1st Defendant account for all rents received since commencement of the lease. The suit properties, Portion Nos. 2743, 2744, 2745, 2746, 2736 and 2748 Malindi, were allegedly fraudulently transferred by the deceased to his brother, the 1st Defendant, who in turn leased them to the 2nd Defendant running a hotel. The 1st Defendant asserted a lawful sale for Euros 240,000 paid in September 2016 and a lawful lease; the 2nd Defendant contended the application was incompetent under Order 27 Rules 1 and 6. The 3rd and 4th Defendants filed no response. The court, without deciding ownership, found the Plaintiff's ownership claim not remote given the timing of the alleged sale. It held that the ends of justice required that one party not enjoy all benefits from disputed property without assurance of ability to compensate the other if the position was overturned. The court granted the application in varied terms: deposit of 2021 rent of Euros 40,000 within 30 days; quarterly deposits of Euros 10,000 from 31st March 2022 with default entailing the 2nd Defendant vacating; an account of all rents from 3rd April 2015 within 30 days; and costs in the cause.

Key legal issues

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01

Whether interim preservation of rental income from disputed property pending trial is warranted

Holding

Yes - the court ordered deposit in court of the 2021 rent and future quarterly rents, with default entailing the 2nd Defendant vacating the premises

Reasoning

The Plaintiff's ownership claim was not remote: the alleged sale was to the deceased's brother during the marriage, with the purchase price paid to the ailing deceased months before his death and in the Plaintiff's absence. The court held the ends of justice required that the 1st Defendant account for rental income and that rents be deposited in court for the duration of the suit.

p. 4
02

Whether the Plaintiff's claim over the rents is defeated by the 1st Defendant's registration as proprietor

Holding

No - ownership remains undecided at this interlocutory stage and the registered title does not render the Plaintiff's claim remote

Reasoning

The court expressly declined to decide ownership but found the Plaintiff's claim not remote given the suspicious timing of the sale. The 1st Defendant's registration and lease to the 2nd Defendant did not preclude protective interim orders preserving rental income pending trial.

p. 4

Legal principles established

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  • The ends of justice are not met where one party continues to enjoy all benefits from disputed property without assurance of ability to compensate the other if the situation is overturned
  • A court may make orders necessary for the ends of justice and to prevent abuse of court process without deciding the question of ownership

Court orders

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  1. 1.Pending hearing and determination of the suit, the Defendants to deposit in Court within 30 days the rental income paid by the 2nd Defendant and received by the 1st Defendant for lease of Portion Nos. 2743, 2744, 2745, 2746, 2736 and 2748 Malindi for the year 2021 being Euros 40,000
  2. 2.The Defendants jointly and severally to deposit Euros 10,000 quarterly in Court per the lease agreement beginning 31st March 2022 pending hearing and determination of the suit, and in default of any single instalment the 2nd Defendant to vacate the suit premises
  3. 3.The 1st Defendant to give a full account of all rental income received from the 2nd Defendant between 3rd April 2015 and the date of the Ruling and file the same in Court within 30 days
  4. 4.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A and 1B
  • Civil Procedure Rules, 2010Order 27 Rules 1 and 6
Jurisdiction invoked
Sections 1A and 1B of the Civil Procedure Act and Order 27 Rules 1 and 6 of the Civil Procedure Rules, 2010

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, "Ann Kinanu Kaburu v Oriano Mabellini & 3 others [2022] KEELC 1582 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1582/eng@2022-02-10

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