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ELCPartially Allowed· [2024] KEELC 1571 (KLR)

Leawin Limited & another v Rono & 3 others (Environment & Land Case E022 of 2023) [2024] KEELC 1571 (KLR)

Environment and Land Court
14 March 2024
2,334 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kajiado (L. Komingoi J) delivered on 14th March 2024 on a Notice of Motion dated 30th August 2023 by the Plaintiffs, Leawin Limited and Leah Chelagat Sawe. The application, brought under Article 40 of the Constitution, Sections 26 and 80 of the Land Registration Act, Order 40 and Order 1 Rule 10(2) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, sought an interim injunction restraining the 1st and 2nd Defendants from dealing with Plots No. LR 403 B (Now A719), Plot 276 C (Now A728) and Plot 832A (Now A738) in Ongata Rongai, a stay of proceedings in Ngong ELCOS No. 10 of 2023 (Jengo Mall Limited v Agnes Sakwa), and an order directing the 3rd and 4th Defendants to nullify entries and allotment letters issued to the 2nd Defendant and restore the 1st Plaintiff as sole proprietor. The plaintiffs alleged that after the judgment of Okwany J in Petition E029 of 2018 (Edwin Kipngeno Rono v Leawin Limited & Another), the 1st Defendant fraudulently transferred the suit properties to the 2nd Defendant to defeat that judgment. The respondents opposed, arguing the plaintiffs held no title and that a similar stay application was pending in the lower court. Applying Nguruman Limited v Jan Bonde Nielsen, the court found a prima facie case, irreparable injury, and that the 1st Defendant was attempting to steal a match, justifying a mandatory injunction. All substantive orders sought were granted; costs were made to abide the outcome of the main suit.

Key legal issues

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01

Whether the plaintiffs established a prima facie case with probability of success

Holding

Yes - by virtue of the judgment of Okwany J in Petition E029 of 2018, the plaintiffs established a prima facie case

Reasoning

The court relied on the prior judgment of Okwany J in Petition E029 of 2018 (Edwin Kipngeno Rono v Leawin Limited & Another), which had dealt with the shareholding and directorship of the 1st plaintiff. Given that judgment, and the alleged fraudulent transfer of the suit properties by the 1st Defendant to defeat it, the court found the applicants had established a prima facie case with a probability of success at trial, satisfying the first Nguruman hurdle.

p. 5
02

Whether the plaintiffs would suffer irreparable loss not compensable by damages

Holding

Yes - the suit properties are registered in the name of a third party and the 1st Defendant has filed suit to dispossess the plaintiffs

Reasoning

The court found it not in dispute that the 1st Defendant fraudulently transferred the suit properties to the 2nd Defendant. The properties being registered in a third party's name, and the 1st Defendant having filed Ngong ELCOS No. 10 of 2023 to evict tenants, demonstrated a determination to dispossess the plaintiffs, so damages would not be an adequate remedy.

p. 5
03

Whether a mandatory injunction should issue at the interlocutory stage

Holding

Yes - the 1st Defendant's steps to dispossess the plaintiffs amount to an attempt to steal a match

Reasoning

Guided by Washington Jalango Okumu v Boffar Limited, the court held that a mandatory interlocutory injunction may issue in clear cases, including where the defendant has attempted to steal a match on the plaintiff. Since the 1st Defendant's actions after Okwany J's judgment were all calculated to dispossess the plaintiffs and fly in the face of that judgment, the higher threshold was met and a mandatory injunction was warranted.

p. 5
04

Whether the court should stay proceedings in Ngong ELCOS No. 10 of 2023

Holding

Yes - a stay of the proceedings and orders in the Magistrate's Court at Ngong was granted pending determination of this suit

Reasoning

Despite the respondents' submission that a similar application for stay had been made before the Magistrate's Court and that Section 6 of the Civil Procedure Act barred the prayer, the court granted the stay as part of the orders sought, finding merit in the application as a whole.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially establish a prima facie case, irreparable injury, and that the balance of convenience is in his favour
  • A mandatory injunction may be granted on an interlocutory application where the defendant has attempted to steal a match on the plaintiff
  • An applicant for an injunction must show a right, legal or equitable, requiring protection by injunction

Court orders

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  1. 1.An injunction restraining the 1st and 2nd Defendants/Respondents and their servants, agents, privies and proxies from taking possession, acquiring any right, selling, leasing, demolishing any structure, developing, evicting the tenants, collecting further rent or dealing with Plots No. LR 403 B (Now A719), Plot 276 C (Now A728), Plot 832A (Now A738) within Ongata Rongai Trading Centre, Kajiado County pending hearing and determination of the Plaintiff's suit
  2. 2.A stay of the proceedings and orders in Magistrate's Court at Ngong, ELCOS No. 10 of 2023 – Jengo Mall Limited v Agnes Sakwa and others, pending hearing and determination of the Plaintiff's suit
  3. 3.An order directing the 3rd and 4th Defendants/Respondents to nullify the entries and allotment letters issued to the 2nd Defendant and restore/register and issue new allotment letters to the 1st Plaintiff/Applicant, Leawin Limited, as sole proprietor of the suit properties
  4. 4.Costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40
  • Land Registration ActSections 26 and 80
  • Civil Procedure Rules, 2010Order 40 Rules (1) & (2); Order 1 Rule 10(2)
  • Civil Procedure ActSections 1A, 1B, 3A and 6

Cases cited (11)

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Joseph Kaloki t/a Royal Family Assembly v Nancy Atieno Ouma
    (2020) eKLR
  • Torino Enterprises Ltd v The AG
    (2023) KESC 79 KLR
  • Pius Kipchirchir Kogo v Franck Kimeli Tenai
    (2018) eKLR
  • Kenya Wildlife Service v James Mutembei
    (2019) eKLR
  • David Ndii & Others v AG & Others
    (2021) eKLR
  • Kenya Breweries Limited & Another v Washington O. Okeyo
    (2002) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Kenleb Construction Ltd v Gatitu Services Station Ltd & Another
    (1990) KLR SST
  • Washington Jalango Okumu v Boffar Limited
    (2005) eKLR
  • Edwin Kipngeno Rono v Leawin Limited & Another
    Petition E029 of 2018
Jurisdiction invoked
Article 40 of the Constitution of Kenya 2010; Sections 26 and 80 of the Land Registration Act; Order 40 Rules (1) & (2) and Order 1 Rule 10(2) of the Civil Procedure Rules, 2010; Sections 1A, 1B & 3A of the Civil Procedure Act

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, "Leawin Limited & another v Rono & 3 others (Environment & Land Case E022 of 2023) [2024] KEELC 1571 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1571/eng@2024-03-14

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