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ELCPartially AllowedCivil Suit 97 of 2013 (formerly Machakos High Court Civil Suit 97 of 2013)· [2014] KEELC 170 (KLR)

Josephine Wambua Githinji v Peter Gachenga Kimuhu & 2 others [2014] KEELC 170 (KLR)

Environment and Land Court
4 August 2014
2,348 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court froze all sale or transfer of disputed Kitengela land after two titles emerged, but allowed the current occupier to keep building at her own risk.

What this practically means

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Executive summary

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This was an interlocutory Notice of Motion dated 14th October 2013, first filed in the Machakos High Court and transferred to the Environment and Land Court, in which the Plaintiff, the registered owner of L.R. No. Kajiado/Kitengela/11081 since January 2001, sought a temporary injunction restraining the 2nd Defendant from erecting structures on, occupying, alienating or dealing with the suit property. She alleged that the 3rd Defendant fraudulently transferred the property to the 1st Defendant in 2008 without her consent, and that the 1st Defendant then sold it to the 2nd Defendant, who was constructing on it. The 1st Defendant asserted he bought the property from the Plaintiff herself for Kshs 1,100,000 but produced no sale documents, claiming he had misplaced them. The 2nd Defendant pleaded she was an innocent purchaser for value without notice, in possession, and had charged the property to Co-operative Bank of Kenya. Applying the Giella v Cassman Brown principles and the Mrao definition of a prima facie case, the court found the Plaintiff had established a prima facie case, since the 1st Defendant produced no evidence of the alleged sale and the existence of two titles over one parcel was itself prima facie evidence of fraud or irregularity. Damages were not an adequate remedy as neither defendant pleaded willingness to compensate. The 2nd Defendant's innocent-purchaser defence was held to be a matter for full trial. The application was partially allowed: the 2nd Defendant was restrained from selling, alienating, subdividing, transferring or otherwise disposing of the suit property, with costs of the application in the cause.

Key legal issues

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01

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

Holding

Yes. The Plaintiff relied on her registered title and denied selling to the 1st Defendant, who produced no evidence of the sale; damages would not be an adequate remedy since neither defendant pleaded willingness to compensate in damages.

Reasoning

The Plaintiff showed her title deed issued in 2001 and the Green Card showing subsequent transfers to the 1st and 2nd Defendants without her consent. The 1st Defendant alleged a sale but attached no sale agreement or transfer documents, claiming he had misplaced them. The court found the apparently infringed right shifted the evidential burden, and that twin titles over one parcel indicated irregular dealings. The Giella/Mrao threshold was therefore met, and irreparable harm inferred as damages were not pleaded as an adequate remedy.

p. 4
02

Whether the 2nd Defendant's plea of being a purchaser for value without notice defeats the injunction

Holding

Not at the interlocutory stage - it can only be established after full trial; the injunction was granted but limited to acts of disposal.

Reasoning

The court noted the 2nd Defendant's defence of innocent purchase for value without notice, backed by a sale agreement, transfer documents and titles, and her charge of the property to Co-operative Bank. However, such a defence requires full trial and a determination of which title is proper as between the Plaintiff and 1st Defendant. The court balanced this by restraining only alienation while leaving the 2nd Defendant's possession and construction at her own risk, and directing joinder of the Bank as an affected party.

p. 4

Legal principles established

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  • The mere existence of two titles over the same property is prima facie evidence of fraud or irregularity in the dealings with the property, though fraud can only be definitively established at full trial.
  • An applicant for a temporary injunction must establish a prima facie case and irreparable loss not compensable by damages; failing which the court may decide the application on the balance of convenience (Giella v Cassman Brown).

Court orders

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  1. 1.The 2nd Defendant, by herself, her representatives, agents, and/or anyone working under her authority, is restrained from selling, alienating, subdividing, transferring or in any other way disposing of the parcel of land known as L.R. No. Kajiado/Kitengela/11081 situated at Kitengela in Kajiado County
  2. 2.The costs of the Plaintiff's Notice of Motion dated 14th October 2013 shall be in the cause

Authorities

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Cases cited (9)

  • Giella vs Cassman Brown & Co Ltd
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 1215
  • Olympic Sports House Ltd vs School Equipment Centre
    Nairobi H.C.C.C No 190 of 2012
  • Payless Car Hire and Tours Ltd vs Imperial Bank
    HCCC No 33 of 2011
  • Kamorero River Farm Ltd & 3 Others vs National Bank of Kenya Ltd
    (2002) 2 KLR 207
  • Waithaka vs Industrial and Commercial Development Corporation
    (2001) KLR 374
  • Lawrence P. Mukiri vs Attorney General & 4 Others
    HCCC No. 169 of 2008
  • Eunice Grace Njambi Kamau & Another vs Attorney General & 5 Others
    (2013) eKLR
  • Karen Bypass Estate Ltd vs Print Avenue and Company Limited
    HCCC No. 248 of 2013
Jurisdiction invoked
Original jurisdiction as Environment and Land Court following transfer from Machakos High 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, "Josephine Wambua Githinji v Peter Gachenga Kimuhu & 2 others [2014] KEELC 170 (KLR)", Case Analysis (2014). Civil Suit 97 of 2013 (formerly Machakos High Court Civil Suit 97 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/170/eng@2014-08-04

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