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ELCDismissed· [2024] KEELC 5584 (KLR)

Ndolo (Suing as the Administrator of the Estate of David Mwau Ndolo - Deceased) v Nuni General Trading Company Limited; Ndolo & 4 others (Interested Parties) (Environment & Land Case E221 of 2022) [2024] KEELC 5584 (KLR)

Environment and Land Court
25 July 2024
1,629 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The 5th Interested Party's notice of motion dated 28.2.2024 sought, after her joinder was allowed on 3.4.2024, a conservatory order that all rents from LR No. 36/11/33 Eastleigh be deposited in court and a temporary injunction restraining the Defendant from making lease payments to any beneficiaries other than herself, pending determination of the main suit. She alleged the lease was procured fraudulently through manipulation of the family's elderly mother, disadvantaging beneficiaries of the estate of David Mwau Ndolo (deceased). The Defendant opposed, noting the 1st tranche of rent was paid to beneficiaries in 2022 and that the applicant's KSh 200,000 share was collected on her behalf by the Plaintiff; it argued no prima facie case, lack of clean hands and abuse of process. The 1st–4th Interested Parties said the lease was lawfully concluded and her grievances were dealt with by the Business Rent Tribunal. The Plaintiff filed no response. The court declined conservatory orders because the legality of the lease is contested and must be tried at the hearing of the main suit. On the injunction, it found the application substantially duplicated the Plaintiff's failed application of 29.6.2022 and amounted to a second bite of the cherry; further, relying on Muruatetu, an interested party cannot litigate beyond the parameters of the primary parties. The court urged parties to stop filing dilatory applications. The application was dismissed with costs to the Defendant and the 1st–4th Interested Parties, save the joinder prayer.

Key legal issues

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01

Whether conservatory orders should issue over rental proceeds pending determination of the legality of the lease

Holding

Refused; fraud/legality of the lease is contested and must be determined at the hearing of the main suit

Reasoning

The court held that the question whether the lease is fraudulent is a contested matter requiring full ventilation at trial, and declined to grant a conservatory order predicated on the lease being fraudulent.

p. 3
02

Whether the injunction application is an abuse of process

Holding

Yes; the application substantially reproduces the Plaintiff's failed application dated 29.6.2022

Reasoning

The court found the orders sought were more or less similar to those refused in the ruling of 20.12.2022, meaning the applicant sought a second bite of the cherry; the application was a recalibration of the earlier one.

p. 3
03

Scope of an interested party's participation

Holding

An interested party, not being a primary litigant, is bound by the parameters of the main protagonists

Reasoning

Relying on the Muruatetu parameters, the court reasoned that an interested party is only remotely or indirectly affected and cannot advance a case beyond the positions of the plaintiff and defendant.

p. 4

Legal principles established

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  • A party joined as an interested party, not being a primary litigant, cannot present her case outside the parameters set by the principal parties
  • Parties should desist from filing multiple applications that derail resolution of substantive issues

Court orders

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  1. 1.The application dated 28.2.2024 dismissed with costs to the defendant and the 1st – 4th Interested Parties, save prayer 2 on joinder

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40

Cases cited (12)

  • Invesco Assurance Co v MW (Minor Suing thro' next friend and mother (HW)
    [2016] eKLR
  • Board of Management of Uhuru Secondary School v City County Director of Education & 2 others
    [2015] eKLR
  • Giella v Cassman Brown
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd
    [2003] eKLR
  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 others
    [2018] eKLR
  • Peter George Antony D'Costa v Attorney General & Another
    [2013] eKLR
  • Kivanga Estates Limited v National Bank of Kenya Limited
    [2017] eKLR
  • Pius Kipchirchir Kogo v Frank Kimelu Tenai
    [2028] eKLR
  • George Muritu Gatheca v Family Bank Limited
    [2017] eKLR
  • Amina Karama v Njagi Gachangua & 3 others
    [2020] eKLR
  • Francis Karioki Muruatetu & Another v. Republic & 5 others
    Sup. Ct. Pet. 15 & 16 of 2015 (consolidated); [2016] eKLR
  • Lawrence Kinyua Mwai v Nyariginu Farmers Co Ltd & another
    [2019] eKLR
Jurisdiction invoked
Not expressly stated; court seized of a pending suit and interlocutory application

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 (Suing as the Administrator of the Estate of David Mwau Ndolo - Deceased) v Nuni General Trading Company Limited; Ndolo & 4 others (Interested Parties) (Environment & Land Case E221 of 2022) [2024] KEELC 5584 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5584/eng@2024-07-25

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