Lesalon v Koiyo & 3 others (Environment & Land Case 91 of 2017) [2022] KEELC 3097 (KLR)
The bottom line
#A landowner who filed two court cases over the same Kajiado land lost his new suit and was ordered to refund a buyer's money.
What this practically means
#Executive summary
#Key legal issues
#Effect of the parallel suit Kajiado CM ELC No. 152/2018
The plaintiff's suit is struck out because a substantially similar suit between the same parties over the same land is pending in the lower court; he must prosecute that suit.
The plaint and verifying affidavit falsely averred that no other suit was pending. Order 4 Rule 1(1)(f) targets multiplicity of suits. The same parties, same land and similar reliefs (including eviction) feature in ELC 152/2018. The plaintiff ought to have withdrawn the lower court suit or proceeded with it to conclusion. The objection that the lower court lacks pecuniary jurisdiction was rejected since only small portions are claimed.
Whether constructive trust and proprietary estoppel apply
They do not apply; the facts are materially different from Kitilit.
In Kitilit it was the registered owner who sold the land, whereas here the first defendant was only a purported owner without authority. Further, the exchange contemplated between the plaintiff and the first defendant never took place, the purchasers lack privity of contract with the plaintiff, and they have not developed the land beyond planting a sisal hedge.
Remedy available to the third defendant
Judgment for refund entered against the first defendant and the plaintiff jointly and severally as per paragraph 20(3) of the counterclaim.
It was not disputed that the third defendant paid money towards the purchase of 3 acres to both the plaintiff and the first defendant. Since the sale failed and the exchange did not take place, it was unconscionable for both to retain the money without giving him the land; the refund relief in the counterclaim was therefore granted.
Legal principles established
#- A plaintiff must aver truthfully under Order 4 Rule 1(1)(f) that no other suit is pending between the parties over the same subject matter; a false verifying affidavit exposing multiplicity of suits justifies striking out the plaint.
- The Chief Magistrates Court's pecuniary jurisdiction of Kshs. 20 million can accommodate land claims over small portions of a parcel even where the whole parcel's value may be higher.
- Constructive trust and proprietary estoppel (per Kitilit) do not arise where the seller was not the true owner, the exchange never took place, and the purchasers have not developed the land.
Court orders
#- 1.Struck out the plaintiff's suit and ordered that he proceeds with the suit in the lower court
- 2.Entered judgment for the third defendant against the first defendant and the plaintiff jointly and severally as per paragraph 20(3) of the defence and counterclaim dated December 8, 2019
- 3.Third defendant's counterclaim allowed in terms of paragraph 20 (3) and (5)
- 4.Plaintiff's suit struck out with costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the ELC Act; court exercised Order 4 Rule 1(6) Civil Procedure Rules to strike out the plaint
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lesalon v Koiyo & 3 others (Environment & Land Case 91 of 2017) [2022] KEELC 3097 (KLR)", Case Analysis (2022). ELC Case at Kajiado (plaint dated October 15, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3097/eng@2022-06-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.