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ELCDismissed· [2022] KEELC 2582 (KLR)

Home Owners of Eden Park Estate c/o Edpark Estate Management Limited v Serem & another (Environment & Land Case E202 of 2021) [2022] KEELC 2582 (KLR)

Environment and Land Court
12 July 2022
MMM. D. Mwangi
2,093 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court dismissed a management company's bid to lift a prohibition on its estate land because it proved no ownership and used the wrong legal route.

What this practically means

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Executive summary

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The plaintiff, described on the title as 'Homeowners of Eden Park Estate C/O Edpark Estate Management Ltd', applied under the Environment and Land Court Act, the Civil Procedure Act and Order 40 for removal of an inhibition registered against L.R. Nairobi/Block 126/246. The 1st Defendant, Kipkogei Serem, opposed with a preliminary objection that the plaintiff was a non-existent entity lacking locus standi, and a replying affidavit. He held a decree of Kshs. 2,150,000/= against Diamond Property Merchants Limited from an arbitration award adopted in HCOM Arbitration No. 006/2020, and had obtained and registered a court-ordered prohibition over the property in execution. The court framed two issues: the identity of the plaintiff and entitlement to the orders. It held, applying Salomon v Salomon, that the plaintiff was Edpark Estate Management Limited, a company with capacity to sue on its own behalf, not for the homeowners; the preliminary objection on capacity therefore failed. On the substance, the court found no evidence of the company's ownership: the certificate of lease remained in Diamond Property Merchants' name and no reversionary interest was registered in the plaintiff's favour. Further, the prohibition was issued by a court of law and the averment was uncontradicted; only that court could lift it, and the present application was neither an appeal, review nor judicial review. The application was dismissed with costs to the 1st Defendant.

Key legal issues

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01

Identity and capacity of the plaintiff

Holding

The plaintiff is Edpark Estate Management Limited, a private limited company with capacity to sue on its own behalf

Reasoning

The title described the plaintiff ambiguously as 'Homeowners of Eden Park Estate C/O Edpark Estate Management Ltd'. The plaint, however, identified the plaintiff as a company incorporated under the Companies Act, and the verifying affidavit sworn by director Calvince Omondi Owuor confirmed Edpark Estate Management Ltd instructed counsel. Applying Salomon, the company sues on its own behalf, not for the homeowners.

p. 4
02

Entitlement to removal of the inhibition/prohibition

Holding

Refused; the plaintiff showed no ownership and the prohibition was court-ordered and can only be lifted by that court

Reasoning

The certificate of lease remained registered in the name of Diamond Property Merchants Limited and no reversionary interest was registered in the plaintiff's favour. The prohibition registered on the title was issued by a court in HCOM Arbitration No. 006/2020, and that averment was not contradicted. The present application was neither an appeal, review nor judicial review.

p. 5

Legal principles established

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  • A limited company has a legal existence of its own independent of its members
  • Parties are bound by their pleadings and evidence at variance with pleadings must be disregarded

Court orders

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  1. 1.The application dated 2nd June 2021 and amended on 10th February 2022 is dismissed with costs to the 1st Defendant
  2. 2.It is so ordered

Authorities

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Legislation

  • Environment and Land Court ActSections 3, 13(2), 13(7)
  • Civil Procedure ActSections 3A, 63(e)
  • Civil Procedure RulesOrder 40
  • Companies Actnull

Cases cited (3)

  • Salomon –Vs- A. Salomon & Company Ltd
    (1897) AC
  • Adetown Oladeji (NIG) – Vs- Nigeria Breweries PLC
    SC a11 2002
  • Raila Amolo Odinga & Another –Vs- IEBC & 2 others
    (2017) eKLR
Jurisdiction invoked
Sections 3, 13(2), 13(7) of the Environment and Land Court Act; Sections 3A and 63(e) of the Civil Procedure Act; Order 40 of the Civil Procedure Rules

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, "Home Owners of Eden Park Estate c/o Edpark Estate Management Limited v Serem & another (Environment & Land Case E202 of 2021) [2022] KEELC 2582 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2582/eng@2022-07-12

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