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ELCPartially AllowedELC Case at Kajiado (plaint dated October 15, 2019)· [2022] KEELC 3097 (KLR)

Lesalon v Koiyo & 3 others (Environment & Land Case 91 of 2017) [2022] KEELC 3097 (KLR)

Environment and Land Court
29 June 2022
1,817 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The plaintiff, registered owner of Kajiado/Kaputiei-Central/607, sued the first defendant, with whom he alleged an oral land-exchange agreement of January 27, 2009, and the second, third and fourth defendants who allegedly bought portions of the suit land from the first defendant without authority. He sought declarations of ownership and nullity of the sale, eviction, damages for trespass and mesne profits, and costs. The first defendant entered appearance but filed no defence. The third defendant filed a defence and counterclaim, alleging he bought 3 acres in 2007 in a sale witnessed by the plaintiff, and sought transfer of the land or, alternatively, a refund, plus a permanent injunction. The court framed three issues: the effect of a parallel suit, Kajiado CM ELC No. 152/2018, between the same parties over the same land; whether constructive trust and proprietary estoppel per Kitilit applied; and the remedy available to the third defendant. The court found the plaintiff's plaint and verifying affidavit breached Order 4 Rule 1(1)(f) by falsely denying the pending suit, and struck out the suit, directing him to proceed in the lower court, whose Kshs. 20 million pecuniary jurisdiction was held adequate. The Kitilit doctrines were distinguished because the seller was not the owner, the exchange never occurred, and the purchasers had not developed the land. Judgment was entered for the third defendant for a refund against the first defendant and plaintiff jointly and severally; the suit was struck out with costs.

Key legal issues

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01

Effect of the parallel suit Kajiado CM ELC No. 152/2018

Holding

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.

Reasoning

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.

p. 4
02

Whether constructive trust and proprietary estoppel apply

Holding

They do not apply; the facts are materially different from Kitilit.

Reasoning

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.

p. 4
03

Remedy available to the third defendant

Holding

Judgment for refund entered against the first defendant and the plaintiff jointly and severally as per paragraph 20(3) of the counterclaim.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Struck out the plaintiff's suit and ordered that he proceeds with the suit in the lower court
  2. 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. 3.Third defendant's counterclaim allowed in terms of paragraph 20 (3) and (5)
  4. 4.Plaintiff's suit struck out with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 4 Rule 1(1)(f), Rule 1(2), Rule 1(6)
  • Land Control Actnot specified (raised by plaintiff's counsel)

Cases cited (1)

  • Willy Kimutai Kitilit v Michael Kibet
    Civil Appeal No. 51 of 2015 (Eldoret)
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

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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, "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.