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ELCDismissedEnvironment and Land Appeal E077 of 2022· [2022] KEELC 15644 (KLR)

Ndolo v Nuni Genera Trading Limited & 2 others

Environment and Land Court
20 December 2022
LMLucy N. Mbugua
1,217 words in judgment
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The bottom line

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A Kenyan court refused to freeze tribunal-held funds because the applicant never proved he served everyone affected, and the orders clashed with a probate grant.

What this practically means

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Executive summary

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The applicant, Joseph Ngui Mwau Ndolo, moved the Environment and Land Court by notice of motion dated September 14, 2022 seeking temporary injunctions restraining the Business Premises Rent Tribunal from transferring money deposited with it in respect of the suit premises, pending hearing of the application and of an appeal against the tribunal's judgment of August 19, 2022 in Tribunal Case No 554 of 2020, which directed that the money be distributed among the beneficiaries of the estate of the late David Mwau Ndolo. The applicant contended that the 1st respondent's agency had been revoked, that the tribunal had earlier dismissed the 1st respondent's applications, and that his mother held a life interest in the suit property. The 1st respondent filed no response despite directions. The court found that although counsel claimed the application did not concern the 2nd and 3rd respondents, the orders sought would plainly affect them, and there was no affidavit of service after October 12, 2022; the application therefore failed for non-service. In any event, the court held that the orders sought were inconsistent with the certificate of confirmed grant of November 24, 2020, under which the suit property was distributed to the applicant and others to hold in trust for the beneficiaries of the 1st household; being a court of equal status with the High Court, the ELC could not issue orders contravening a High Court probate order. The application was dismissed with no orders as to costs.

Key legal issues

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01

Effect of non-service on an interlocutory application

Holding

The application failed at the outset because there was no affidavit of service proving compliance with the court's direction to serve all respondents

Reasoning

The court had directed service of all documents on the other respondents by October 19, 2022. No affidavit of service post October 12, 2022 was filed. Since the orders sought would affect the 2nd and 3rd respondents, particularly the 3rd respondent as a beneficiary of the estate, non-service was fatal to the application.

p. 3
02

Injunction orders inconsistent with a confirmed grant in probate

Holding

The court could not grant orders inconsistent with the certificate of confirmed grant distributing the suit property to trustees for the beneficiaries of the 1st household

Reasoning

The applicant admitted the property was distributed to him and the 3rd respondent to hold in trust, yet claimed the widow had exclusive rights. As the grant was a High Court probate order, the ELC, being of equal status, could not issue orders in contravention of it, even assuming proper service.

p. 3

Legal principles established

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  • A court of equal status with the High Court cannot issue orders in contravention of a High Court probate order

Court orders

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  1. 1.The application dated September 14, 2022 is dismissed with no orders as to costs
On appeal from
Business Premises Rent Tribunal
Tribunal Case No 554 of 2020 Nairobi
Jurisdiction invoked
Appellate/supervisory jurisdiction of the Environment and Land Court over the Business Premises Rent Tribunal; the court notes it is 'a court of equal status with the High court'

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, "Ndolo v Nuni Genera Trading Limited & 2 others", Case Analysis (2022). Environment and Land Appeal E077 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15644/eng@2022-12-20

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