[2017] KEELC 3552 (KLR)
The court found that although the precise role of Victor Mahonga Ayumba in the transaction was unclear at this stage, both the plaintiff and the 1st defendant had tendered part of the purchase price to him. The 1st defendant's claim for indemnity against Victor Mahonga Ayumba was not frivolous and could be...
Source-derived case information.
- Citation
- [2017] KEELC 3552 (KLR)
- Parties
- Plaintiff: Damaris Wanjiru Nganga; Defendant: Loise Naisiae Leiyan; Defendant: Kenya Commercial Bank Limited
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 82 of 2015
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Enjoin Third Party
- Outcome
- application allowed
- Judges
- MA Silau
- Legal Topics
- Specific Performance, Land Control Board Consent, Third Party Procedure, Indemnity Claims
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Damaris Wanjiru Nganga
Plaintiff
Loise Naisiae Leiyan
Defendant
Kenya Commercial Bank Limited
Defendant
Procedural Posture
Miscellaneous Application / Ruling on Application to Enjoin Third Party
Legal Issues
- 1 Whether the 1st defendant should be granted leave to enjoin Victor Mahonga Ayumba as a third party for purposes of indemnity.
- 2 Whether the absence of Land Control Board consent renders the sale transaction null and void.
Ratio Decidendi
The court found that although the precise role of Victor Mahonga Ayumba in the transaction was unclear at this stage, both the plaintiff and the 1st defendant had tendered part of the purchase price to him. The 1st defendant's claim for indemnity against Victor Mahonga Ayumba was not frivolous and could be determined depending on the outcome of the main suit. The court held that there would be no prejudice to the intended third party if enjoined, as he would have the opportunity to apply for discharge if wrongly joined. Accordingly, the court exercised its discretion to allow the 1st defendant to issue a third party notice against Victor Mahonga Ayumba.
Court Disposition
application allowed
Orders
- The 1st defendant is granted leave to issue a third party notice against Victor Mahonga Ayumba.
- The third party notice shall be filed forthwith and served within 14 days.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT OF KENYA
AT NAKURU
ELC NO 82 OF 2015
DAMARIS WANJIRU NGANGA ……............................................…………….PLAINTIFF
VERSUS
LOISE NAISIAE LEIYAN ……….............................................………..1ST DEFENDANT
KENYA COMMERCIAL BANL LIMITED ……………………………..2ND DEFENDANT
RULING
(Application to enjoin a 3rd party; defendant seeking indemnity on purchase price; part of purchase price paid to the intended 3rd party; application allowed)
1. This is an application filed by the 1st defendant on 13 September 2016 essentially seeking leave to enjoin one Victor Mahonga Ayumba as a third party in these proceedings. The backdrop is that this suit was commenced by way of plaint on 23 March 2015. The case of the plaintiff is that by an agreement dated 4 February 2014, the 1st defendant agreed to sell to the plaintiff the land parcel Miti Mingi/Mbaruk Block 8/2367 (Kianjoya D). At the time of sale, the property was charged to Kenya Commercial Bank, the 2nd defendant. The plaintiff avers that she paid the whole purchase price but that the 1st defendant failed to clear her loan with the bank. In the suit, the plaintiff wishes to have an order of specific performance and in the alternative refund of the market value of the suit property.
2. In her defence, the 1st defendant pleaded inter alia that the sale of the property was subject to issuance of the consent of the Land Control Board and none was given hence the transaction is null and void.
3. In this application, the 1st defendant has repeated the argument that the transaction between herself and the plaintiff is null and void for want of consent of the Land Control Board and that the plaintiff is only entitled to a refund of the monies paid. She has averred that the sum of Kshs. 2,230,000/= was paid to and received by Victor Mahonga Ayumba. She has stated that she wishes to claim indemnity against the said Victor Mahonga Ayumba.
4. It is not very clear at this stage of the proceedings why the said Victor Mahonga Ayumba was involved in the transaction between the plaintiff and defendant and why some money was paid to him. But it does appear that both plaintiff and 1st defendant did tender part of the purchase price to him. It may be that the defendant may be entitled to claim indemnity against the said Victor depending on how this suit goes. I will give the 1st defendant the benefit of doubt and permit him to enjoin the intended 3rd party. I see no prejudice to the 3rd party, for if he will be of the feeling that he ought not to have been enjoined, he may apply to be discharged.
5. Given the above, I allow this application. The 1st defendant may issue a 3rd party notice against Victor Mahonga Ayumba. I direct that the 3rd party notice be filed forthwith, and no later than 14 days, and be served promptly on the said Victor Mahonga Ayumba.
6. I make no orders as to costs.
7. It is so ordered.
Dated, signed and delivered in open court at Nakuru this 15th day of February 2017.
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU
In presence of :
Ms. Mugweru for the plaintiff
No appearance on the part of M/s Echessa Bwire & Co. for the applicant/1st defendant
No appearance on the part of M/s Mburu Maina & Co. Advocates for the 2nd defendant
Court Assistant : Nelima
MUNYAO SILA
JUDGE
ENVIRONMENT & LAND COURT
AT NAKURU