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ELCDismissedMachakos ELC Case (Plaint dated 16th September 2013)· [2022] KEELC 1822 (KLR)

Rashid Mutua & 3 others v Peter Kyalo Mutua & 4 others [2022] KEELC 1822 (KLR)

Environment and Land Court
3 February 2022
5,366 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed Athi River slum dwellers' bid to stop trustees sub-dividing their land because they couldn't prove the loan was still unpaid.

What this practically means

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Executive summary

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The four Plaintiffs, members of Athi River Slum Dwellers, sued the four registered trustees of the group seeking an injunction restraining dealings with Mavoko Town Block 3/2347 until the loan from Muungano Wa Wanavijiji Akiba Mashinani Trust was fully repaid and all beneficiaries agreed on the mode of sub-division and a surveyor. The Plaintiffs alleged the property was purchased with a Kshs 3,000,000 Trust loan plus Kshs 1,000,000 member contributions, registered in the Defendants' names as trustees, and that the Defendants fraudulently began sub-division before loan repayment and imposed exorbitant survey fees. The Defendants denied the allegations, contending the group had 400 members per the Trust Deed, that the loan was fully repaid, that survey fees were reasonable, and that under Clause 5 of the Declaration of Trust they could sell defaulting members' shares. The Defendants closed their case without calling any witness. The court framed three issues: compliance with Order 1 Rules 8(2) and 13(2); breach of the Trust Deed; and appropriate orders. It held that failure to serve the Order 1 Rule 8(2) notice rendered the representative capacity fatally defective, but the suit survived for the four Plaintiffs individually. On the merits, the court found no proof of an outstanding loan, no requirement that members agree on a surveyor, and no proof of self-allocation to non-members. The Plaintiffs' suit was dismissed with costs to the Defendants on 3rd February 2022.

Key legal issues

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01

Whether non-compliance with Order 1 Rules 8(2) and 13(2) is fatal to the suit

Holding

Failure to serve the Rule 8(2) notice renders the representative capacity fatally defective, but the suit survives for the four Plaintiffs individually who pleaded and verified it; no separate written authority under Order 1 Rule 13(2) was needed for them

Reasoning

The court applied Yiapas Ole Seese and Trypanosomiasis Research Institute on the importance of notice in representative suits, holding that compliance goes to the substance of such suits. However, since the four Plaintiffs pleaded the suit on their own behalf and each swore the verifying affidavit, the suit is sustainable only as regards them, and the court confined its determination to the four Plaintiffs.

p. 5
02

Whether the Defendants breached the Trust Deed by sub-dividing before repayment of the loan

Holding

No breach proved: the Plaintiffs failed to prove an outstanding loan, and the Trust Deed left sub-division and surveyor engagement to the Trustees, conditioned only on full repayment

Reasoning

The Trust Deed required sub-division and issuance of titles only upon repayment of the Kshs 3,000,000 loan. The Plaintiffs produced payment schedules and receipts but no evidence of the total payable, amount paid or outstanding balance, and PW1 could not speak to the loan terms. There was no evidence of demand, no requirement that members agree on a surveyor, and no proof of allocation to non-members.

p. 7
03

Whether injunction should issue

Holding

Injunction refused as the Plaintiffs failed to discharge the burden of proof on a balance of probabilities

Reasoning

The court noted the prayer was curious as injunctive reliefs are generally sought in addition to other remedies, and found that on the evidence the Plaintiffs had not proved their case. The trust relationship and the Defendants' proprietorship had not been impeached, so the orders sought could not lie.

p. 8

Legal principles established

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  • Failure to serve notice under Order 1 Rule 8(2) of the Civil Procedure Rules renders a representative suit fatally defective, but where several plaintiffs have themselves pleaded and verified the suit, it remains sustainable in respect of those plaintiffs alone
  • A trustee's overriding obligation is to comply with the terms of the trust and, subject thereto, to act honestly, diligently and in the best interests of the beneficiaries

Court orders

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  1. 1.The Plaintiffs' suit is dismissed with costs to the Defendants

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 1 Rule 8(1) and (2)
  • Civil Procedure Rules, 2010Order 1 Rule 13(1) and (2)
  • Civil Procedure Rules, 2010Order 4 Rule 1(3)
  • Civil Procedure Rules, 2010Order 1 Rule 12
  • Trust Deed of Athi River Slum Dwellers dated 5th June 2006Clauses (1)-(4), (8)

Cases cited (3)

  • Yiapas Ole Seese & 4 others vs Sakita Ole Narok & 2 others
    [2008] eKLR
  • Trypanosomiasis Research Institute vs Anthony Kabimba Gusinjilu (Suing for and on behalf of 112 Plaintiffs)
    [2019] eKLR
  • Armitage vs Nurse
    [1997] 3 WLR 1046
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit property Mavoko Town Block 3/2347; suit commenced by Plaint

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, "Rashid Mutua & 3 others v Peter Kyalo Mutua & 4 others [2022] KEELC 1822 (KLR)", Case Analysis (2022). Machakos ELC Case (Plaint dated 16th September 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1822/eng@2022-02-03

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