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ELCPartially AllowedNot stated in the judgment as provided· [2024] KEELC 4728 (KLR)

Kimani & 2 others v Karoki; Kariiyi & another (Interested Parties) (Environment & Land Case 690 of 2012) [2024] KEELC 4728 (KLR)

Environment and Land Court
13 June 2024
7,672 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~31 min to read original · ~4 min brief

The bottom line

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A Nairobi court ruled that co-owners of jointly bought land cannot sue each other for trespass, splitting the property's rental income 40:60.

What this practically means

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Executive summary

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The Plaintiffs sued the Defendant, her mother-in-law/cousin, seeking a permanent injunction restraining her from dealing with or collecting rent from L.R No 209/2360/1, Race Course Road, Nairobi, accounts since April 2008, remission of monthly rent of Kshs 2,300,000, an order to appoint their own managing agent, and general damages for trespass. They claimed they, together with the 1st Interested Party (the Defendant's son), jointly purchased the property for Kshs 30,000,000 in 2007, but the Defendant took over management and rent collection through her companies. The Defendant denied trespass, claiming she acted as agent for her son, through whom the purchase price was largely paid via Superiorfone Communications Limited. The Court framed two issues: whether trespass was established and what reliefs should issue. It held that between co-owners an action in trespass does not normally lie, and that the Defendant retained the 1st Interested Party's consent to enter. Applying Salomon v Salomon, it found the rent was allegedly collected by companies that were never sued, and no direct evidence showed money reaching the Defendant personally; the unproduced Mamuka Valuers report lacked probative value. The claims for trespass, injunction, accounts, mesne profits and damages accordingly failed. However, the Court determined the co-purchasers' shares by contribution: the 2nd and 3rd Plaintiffs paid approximately Kshs 12,000,000 of the Kshs 30,000,000, giving a 40:60 split in favour of the 1st Interested Party. The suit was dismissed with costs to the Defendant and 1st Interested Party, but the Court ordered distribution of rental proceeds in the 40:60 ratio and handover of the premises by the court-appointed administrator.

Key legal issues

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01

Whether the Plaintiffs established trespass against the Defendant

Holding

No. The Defendant entered with the permission of the 2nd and 3rd Plaintiffs and, after revocation, retained the consent of the 1st Interested Party, a co-owner; between co-owners no action in trespass normally lies.

Reasoning

The Court held that proof of a right to immediate and exclusive possession is the first hurdle in trespass. Ownership of the property was joint, and the 1st Interested Party, a co-owner, had permitted the Defendant's entry. Applying the unity of possession between co-owners, no trespass could be made out against an agent of a co-owner.

p. 11
02

Whether the Defendant personally collected rent from the suit property

Holding

Not proved. Rent was allegedly collected through Superiorfone Communications/Superiorfone Holdings, which were not sued, and no direct evidence showed money moving to the Defendant.

Reasoning

Applying Salomon v Salomon, the Court held that a company is distinct from its directors. The Plaintiff did not sue the companies alleged to have collected the rent, and no piercing of the veil was justified on the evidence. The Mamuka Valuers report, produced without its maker, did not prove receipt of monies by the Defendant.

p. 12
03

The respective shares of the co-purchasers in the suit property and rental proceeds

Holding

The 2nd and 3rd Plaintiffs proved contribution of approximately Kshs 12,000,000 out of Kshs 30,000,000; entitlement is 40% to the 2nd and 3rd Plaintiffs and 60% to the 1st Interested Party.

Reasoning

Since the Sale Agreement did not allocate distinct shares, the Court apportioned entitlement by contribution to the purchase price, converting the USD 110,000 remitted by the 2nd and 3rd Plaintiffs to approximately Kshs 12,100,000, and attributing the balance of Kshs 18,000,000 to the 1st Interested Party through the Defendant.

p. 13
04

The role of an Interested Party in proceedings

Holding

An Interested Party's role is peripheral; it may testify but may not raise or introduce new issues for determination.

Reasoning

Relying on the Muruatetu decision of the Supreme Court, the Court held that the overriding stake in any matter belongs to the principal parties, and issues for determination remain those presented by or framed from the pleadings of the principal parties. New issues raised by the 1st Interested Party were to be disregarded.

p. 9

Legal principles established

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  • Trespass is a violation of the right to possession; a plaintiff must prove the right to immediate and exclusive possession of the land, which is different from ownership
  • No action for trespass will normally lie between co-owners holding under a joint tenancy, given the unity of possession
  • A company is a separate legal person distinct from its shareholders and directors unless there are factors warranting lifting of the veil
  • An Interested Party cannot frame fresh issues or introduce new issues for determination; the issues remain those presented by the principal parties
  • Where co-purchasers' shares are not specified in a sale agreement, entitlement is determined by contribution to the purchase price

Court orders

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  1. 1.The Plaintiffs' suit is dismissed
  2. 2.The ownership of the suit property shall be held by the 2nd and 3rd Plaintiffs on one part and the 1st Interested Party on the other part in the ratio of 40:60
  3. 3.Upon rendering of accounts by the court-appointed administrator within 30 days, the rental proceeds held in Co-operative Bank A/C XXX, NBC Nairobi shall be distributed between the 2nd and 3rd Plaintiffs and the 1st Interested Party in the ratio of 40:60
  4. 4.The rental proceeds shall henceforth be distributed between the 2nd and 3rd Plaintiffs and the 1st Interested Party in the ratio of 40:60
  5. 5.The court-appointed administrator shall cease managing the suit property within 30 days and shall hand over the premises to the 1st Interested Party and the 2nd and 3rd Plaintiffs
  6. 6.The Plaintiffs shall pay the Defendant and the 1st Interested Party the costs of the suit

Authorities

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Legislation

  • Trespass ActSection 3(1)
  • Civil Procedure ActSection 22(d)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedures Rules, 2013Definition of Interested Party

Cases cited (21)

  • Raila Amolo Odinga & Anor vs Independent Electoral and Boundaries Commission & 2 Others
    [2017] eKLR
  • Jeremiah Nyagwara Matoke vs Independent Electoral and Boundaries Commission & 2 Ors
    [2018] eKLR
  • Ochako Obinchu vs Zachary Oyoti Nyamogo
    [2018] eKLR
  • Kenya Akiba Micro Financing Limited vs Ezekiel Chebii and 14 Others
    [2012] eKLR
  • Ram International Limited vs Masai Mara University
    [2021] eKLR
  • Gabriel Njuguna Njoroge vs David Lobongon Tioko
    [2017] eKLR
  • Park Towers Limited vs Moses Chege & 7 Others
    [2014] eKLR
  • Ukwala Supermarket vs Jaideep Shah & Another
    [2022] eKLR
  • Kolaba Enterprises Ltd vs Shamsudin Hussein Varvani & Another
    (2014) eKLR
  • Victor Mabachi & Another vs Nurturn Bates Ltd
    [2013] eKLR
  • Ganesh Engineering Works Limited & 3 Others vs Yamini Builders Limited
    [2021] eKLR
  • Kenneth Nyaga Mwige vs Austin Kiguta & 2 Others
    [2015) eKLR
  • Michael Hausa vs The State
    (1994) 7-8 SCNJ 144
  • Francis Karioko Muruatetu & Another vs Republic & 5 Others
    [2016] eKLR
  • Trusted Society of Human Rights Alliance vs Mumo Matemu & 5 Others
    [2015] eKLR
  • Municipal Council of Eldoret vs Titus Gatitu Njau
    [2020] eKLR
  • M'Mukanya vs M'Mbijiwe
    (1984) KLR 761
  • Thomson v Ward
    (1953) 2QB 153
  • Salomon vs Salomon
    [1897] AC 78
  • Anthony FrancisWareheim t/a Wareham & 2 Others v Kenya Post Ofice Savings Bank
    NRB CA Civil Application Nos. Nai 5 & 48 of 2002
  • Cornella Nabangala Nabwana vs Edward Vitalis Akuku & 2 Others
    [2017] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property L.R No 209/2360/1, Race Course Road, Nairobi

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, "Kimani & 2 others v Karoki; Kariiyi & another (Interested Parties) (Environment & Land Case 690 of 2012) [2024] KEELC 4728 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4728/eng@2024-06-13

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