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ELCAllowedNot stated in judgment· [2014] KEELC 36 (KLR)

Benjamin Mapi Ole Partimo v Naisenyu Parngarwa Mutunkei [2014] KEELC 36 (KLR)

Environment and Land Court
9 December 2014
PNP. Nyamweya
1,536 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court blocked all dealings on a Kajiado property, ruling registered ownership plus the absence of written proof of an oral land exchange secured an injunction.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's Notice of Motion dated 16th April 2014 in the Environment and Land Court at Nairobi, seeking a temporary injunction restraining the Defendant from interfering with Land Reference Number KAJIADO/KAPUTIEI-CENTRAL/1766, and a mandatory injunction compelling the Defendant to deposit the original title deed in court pending hearing of the suit. The Plaintiff, the registered owner, stated he lost his title, complied with procedures for its replacement culminating in a Kenya Gazette notice of 8th November 2013, and alleged the Defendant had fraudulently procured or retained the original title and attempted to lodge a transfer without his authority. The Defendant, the Plaintiff's first cousin, alleged a 2004 oral agreement exchanging 50 acres of the suit property for 3 acres at Kitengela, on which she claimed to live, and that the Plaintiff had given her the title and executed Land Control Board consent forms. The court, applying Giella v Cassman Brown, Mrao Ltd v First American Bank and Kenya Breweries v Washington Okeyo, found the Plaintiff had established a prima facie case: his ownership was undisputed and the Defendant produced no written evidence of the alleged land exchange or of the Kitengela property. The court also found this a clear case for the mandatory injunction, deposit of the title being necessary to preserve the suit property. Noting the Defendant's claim to reside on the land without supporting evidence, the court granted both injunctions and ordered costs of the application to be in the cause. Judgment delivered by P. Nyamweya, J, on 9th December 2014.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for a temporary injunction

Holding

Yes - the Plaintiff is the registered owner and the Defendant produced no written evidence of the alleged oral exchange of land

Reasoning

The court found the Plaintiff's registration as owner undisputed. The Defendant alleged an oral 2004 agreement exchanging 50 acres of the suit property for 3 acres at Kitengela, but produced no written evidence as required by law for dispositions of land, nor evidence of the Kitengela property's existence. Registration plus absence of corroborating written evidence sufficed to establish a prima facie case warranting an explanation or rebuttal from the Defendant.

p. 3
02

Whether the mandatory injunction for deposit of the title deed should issue

Holding

Yes - this is a clear case and the deposit is necessary to preserve the suit property pending trial

Reasoning

Applying the Kenya Breweries v Washington Okeyo threshold, the court held that the same reasons establishing the prima facie case made this a clear case for the mandatory injunction. Additionally, depositing the original title in court would preserve the suit property pending hearing and determination, given the Plaintiff's apprehension that the Defendant, holding the original title, might deal with it fraudulently.

p. 3

Legal principles established

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  • Requirements for temporary injunction: prima facie case, irreparable loss not compensable by damages, and failing both, balance of convenience
  • Definition of a prima facie case in civil applications
  • A mandatory injunction requires special circumstances making it a clear case to be decided at once

Court orders

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  1. 1.The Defendant, by herself, her servants and/or agents, restrained from undertaking any further construction upon, charging, selling, subdividing, disposing of or in any other manner alienating Land Reference Number KAJIADO/KAPUTIEI-CENTRAL/1766 pending the hearing and determination of this suit or until further orders
  2. 2.The Defendant ordered to deposit in Court the original title deed to Land Reference Number KAJIADO/KAPUTIEI-CENTRAL/1766 with the Nairobi Environment and Land Court Deputy Registrar within 15 days of service of the orders upon her
  3. 3.Costs of the Plaintiff's Notice of Motion dated 16th April 2014 to be in the cause
Jurisdiction invoked
Not expressly stated; the court exercised its original jurisdiction over land disputes as the Environment and Land Court

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, "Benjamin Mapi Ole Partimo v Naisenyu Parngarwa Mutunkei [2014] KEELC 36 (KLR)", Case Analysis (2014). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/36/eng@2014-12-09

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