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ELCAllowedNot stated in the judgment (application dated 2nd May 2013)· [2013] KEELC 85 (KLR)

Ringa Kaingu Ringa & 3 others v Yahya Said Masoud & 2 others [2013] KEELC 85 (KLR)

Environment and Land Court
29 August 2013
1,869 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Malindi blocked defendants from selling, cultivating or building on disputed family land until the full case is heard.

What this practically means

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Executive summary

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The Plaintiffs, co-administrators of the Estate of Kaingu Ringa, moved the Environment and Land Court at Malindi by Notice of Motion dated 2nd May 2013 under section 13(7)(a) and (i) of the Environment and Land Court Act and Order 40 of the Civil Procedure Rules, seeking a temporary injunction restraining the Defendants from cultivating, trespassing on, alienating, selling, constructing upon or charging the Plaintiffs' half undivided share (about 3.61 acres) of Plot 317/Malindi pending trial. Both sides agreed the 7.22-acre plot was originally owned by Nyawa wa Amani and Afwa binti Hassanali as tenants in common; the dispute concerned the devolution of Nyawa wa Amani's half. The Plaintiffs traced the share through transfers to Sharrif Hassan Alwi and then to Kaingu Ringa, supported by a certificate of postal search; the 1st Defendant alleged a chain of inheritance through the family and relied on Succession Cause No. 9 of 2012 in the Kadhi's Court, by which he was registered as trustee, and alleged the Plaintiffs' title documents were forgeries. The court, applying Giella v Cassman Brown, held the Plaintiffs had established a prima facie case with chances of success, that forgery could not be determined at the interlocutory stage, that the Kadhi's Court consent order could not confer title as the land was already registered and the cause was not heard on its merit, and that exclusion from the property would cause irreparable damage. The application was allowed in terms of prayers 3 and 4, with costs in the cause.

Key legal issues

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01

Prima facie case

Holding

The Plaintiffs established a prima facie case with chances of success on the strength of a certificate of postal search showing ½ undivided share registered in their father's name, which the Defendants did not rebut with contrary documentation.

Reasoning

Both parties asserted competing chains of devolution of Nyawa wa Amani's share, but neither annexed the foundational transfer documents. The Plaintiffs, however, produced a certificate of postal search and registered transfers showing the half share registered in their father's name. The Defendants alleged forgery but annexed no document from the Ministry of Lands disproving the search, so the allegation could not defeat the application at this stage.

p. 3
02

Irreparable harm and right of user

Holding

Exclusion of the Plaintiffs from the suit property would cause irreparable damage not adequately compensable in damages, warranting preservation of the status quo pending trial.

Reasoning

The 1st Defendant occupies adjacent plot 310 and the beneficiaries he claims to represent do not live on the suit property. Until the title held by the Plaintiffs' father is cancelled, the Plaintiffs should be allowed to continue using the property; exclusive use by the Defendants would cause harm beyond compensation in damages.

p. 4
03

Effect of the Kadhi's Court succession cause

Holding

The consent allowing the succession petition could not confer title, as the Kadhi's Court lacked jurisdiction once the land was registered in the Plaintiffs' father's name and the Petition was not heard on its merit.

Reasoning

The 1st Defendant used Succession Cause No. 9 of 2012 in the Kadhi's Court to vest the suit property in himself as trustee. The Respondent merely confirmed the Petitioner's averments and the cause was allowed by consent without a hearing on the merits. Since the land was already registered in the Plaintiffs' father's name, the Kadhi's Court would not have had jurisdiction had it been informed.

p. 3

Legal principles established

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  • The principles for granting an interlocutory injunction are those in Giella v Cassman Brown: prima facie case, irreparable injury, and balance of convenience.
  • Forgery of a document is not determinable at interlocutory stage; it is a matter for the full trial.

Court orders

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  1. 1.Temporary injunction issued restraining the Defendants, their servants, agents or persons claiming through them, from planting further crops and trees or further cultivation upon, trespassing on, alienating, selling, constructing upon or charging the half undivided share of land measuring 3.61 acres within Plot 317/Malindi (LT 27 Folio No. 3490) at Kijiwetanga village, Malindi, pending hearing and determination of the case
  2. 2.Plaintiffs' Application dated 2nd May 2013 allowed in terms of prayers number 3 and 4

Authorities

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Legislation

  • Environment and Land Court Actsection 13(7)(a) and (i)
  • Civil Procedure Rules, 2010Order 40

Cases cited (1)

  • Giella Vs Cassman Brown & Co. Ltd
    (1973) EA 318
Jurisdiction invoked
Section 13(7)(a) and (i) of the Environment and Land Court Act No. 19 of 2011 and Order 40 of the Civil Procedure Rules, 2010

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, "Ringa Kaingu Ringa & 3 others v Yahya Said Masoud & 2 others [2013] KEELC 85 (KLR)", Case Analysis (2013). Not stated in the judgment (application dated 2nd May 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2013/85/eng@2013-08-29

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