Saif Properties Limited v Frank Logistics Limited & another; Osundwa Sakwa T/A Osundwa & Company Advocates & 2 others (Interested Parties) (Environment & Land Case E059 of 2022) [2022] KEELC 3324 (KLR)
The bottom line
#A Nairobi court ordered a land seller's lawyers to refund a Kshs 21.5 million deposit and directed police to investigate the property's disputed title.
What this practically means
#Executive summary
#Key legal issues
#Whether an interlocutory mandatory injunction should issue compelling the stakeholder advocates to refund the deposit
Yes - the applicant demonstrated an exceptionally clear and strong case; ownership of the suit property is disputed in other pending litigation, so the refund was ordered.
The court applied the Court of Appeal's tests that mandatory injunctions at interlocutory stage are exceptional but may issue where the case is clear. It found unresolved questions about the applicant's knowledge of the subsisting order in ELC No 792 of 2015, breach of warranties, and validity of the rescission, and held the applicant had shown an exceptionally clear case warranting the order at the interlocutory stage.
Whether Osundwa Sakwa t/a Osundwa & Company Advocates should be barred from acting and sanctioned
The firm was barred from acting for conflict of interest, having acted for the plaintiff in ELC No 792 of 2015 and been aware of the orders, though it was not a party to the sale transaction and had ceased acting.
The court noted the firm was not party to the December 14, 2021 transaction and had ceased acting for the plaintiff effective March 17, 2022. However, having acted for the plaintiff in ELC No 792 of 2015 and been aware of the injunction orders, its acceptance of the plaintiff's brief in this matter was deemed unbecoming conduct, justifying removal from the record but not formal disciplinary action.
Legal principles established
#- A mandatory injunction may be granted on an interlocutory application but is exceptional relief, granted only in the absence of special circumstances it will not normally issue; the court must feel a high degree of assurance that it was rightly granted
- Where a party against whom a mandatory injunction is sought is prima facie on the wrong, courts may act at the interlocutory stage without awaiting full hearing
Court orders
#- 1.A mandatory injunction compelling the firm of Daniel Orenge & Company Advocates to refund Kshs 21,500,000/= together with all accrued interest to the firm of Wamae & Allen Advocates within twenty-one (21) days from the date of the ruling
- 2.An order directing the Directorate of Criminal Investigations to investigate the legality of Deed Plan No 414900 and the certificate of title issued over L R No 1/1381 (I R 200711) (Original No 1/385) and whether Frank Logistics Limited and its agents/employees were complicit in forgery, perjury, obtaining by false pretence or other criminal acts
- 3.The firm of Osundwa Sakwa t/a Osundwa & Company Advocates barred from acting in these proceedings on account of conflict of interest
- 4.Costs of the application to abide the outcome of the main suit
- Jurisdiction invoked
- Articles 10(b) and 159(2)(b) & (e) of the Constitution; Environment and Land Court Act No. 19 of 2011; Civil Procedure Act; Order 40 Rules 1,2,3,4 and 11; Section 56 of the Advocates Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saif Properties Limited v Frank Logistics Limited & another; Osundwa Sakwa T/A Osundwa & Company Advocates & 2 others (Interested Parties) (Environment & Land Case E059 of 2022) [2022] KEELC 3324 (KLR)", Case Analysis (2022). Notice of Motion dated March 14, 2022 (in the main suit and counterclaim). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3324/eng@2022-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.