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ELCPartially Allowed· [2014] KEELC 342 (KLR)

George Nakulo Osallo v Barclays Bank of Kenya & 2 others [2014] KEELC 342 (KLR)

High Court of Kenya
10 June 2014
2,970 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, registered proprietor of Kajiado/Kaputiei-North/19734 since 2007 and occupant since October 2009, moved the court by Notice of Motion dated 13th December 2011 seeking a temporary injunction restraining the Defendants from evicting him, levying distress, asserting ownership or interfering with his possession of the suit property. He alleged that the 1st Defendant's auctioneers, Garam Investments, advertised for sale the wrong parcel - the storeyed building on his land - while the property actually charged to the 1st Defendant, Kajiado/Kaputiei North/3587, belonged to one Geoffrey Kyalo Muema and lay some 30 metres away; and that after the sale to the 2nd Defendant in June 2011, the 2nd Defendant's auctioneers forcibly entered the property claiming the Plaintiff's family were illegal tenants in arrears of rent. The 1st Defendant countered that its charge over 3587 was valid, that a survey by Thagishu & Associates established that the Plaintiff's storeyed building stood on 3587, making him a trespasser, while the 2nd Defendant claimed to be a bona fide purchaser without notice. Applying the Giella v Cassman Brown test and the definition of a prima facie case in Mrao Ltd v First American Bank, the court found it could not hold that a prima facie case was established, since both sides held titles and the true controversy was the physical location of the two parcels, resolvable only by an official survey. Deciding on the balance of convenience, which favoured the Plaintiff as his family resided on the land, the court ordered maintenance of the status quo for six months, a County Surveyor's report within 30 days, equal sharing of survey costs, and that the motion's costs be in the cause. The injunction as sought was effectively refused pending that survey.

Key legal issues

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01

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

Holding

No prima facie case was established because the key dispute - the relative ground locations of the two titled parcels - cannot be resolved on the affidavits and titles alone

Reasoning

The Plaintiff relied on his title to Kajiado/Kaputiei North/19734, while the 1st and 2nd Defendants held title to and evidence of registration of Kajiado/Kaputiei North/3587, supported by a surveyors' report placing the Plaintiff's storeyed building on 3587. With competing titles and a purely factual survey dispute, the court could not conclude that a right had apparently been infringed requiring rebuttal.

02

Whether the balance of convenience favoured the Plaintiff

Holding

The balance of convenience tilted in the Plaintiff's favour because he and his family reside on the property, but the status quo was limited to six months pending an expeditious official survey

Reasoning

The court noted the Plaintiff and his family live on the subject property, justifying preservation of the status quo. It also recognised that if the Plaintiff is occupying 3587, the 2nd Defendant would suffer considerable prejudice, so the survey confirmation had to be done expeditiously within a defined period, with the orders lapsing on the Plaintiff's default in facilitating the survey.

p. 5

Legal principles established

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  • The grant of a temporary injunction requires the applicant to establish a prima facie case and irreparable loss not compensable by damages, failing which the court may decide on the balance of convenience
  • Where both parties hold registered titles to disputed parcels and the contested issue is the physical location of the land, the court cannot find a prima facie case without an official survey

Court orders

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  1. 1.Status quo to be maintained by the parties for six (6) months from the date of the ruling: both Plaintiff and 2nd Defendant restrained from selling, transferring, leasing, charging or otherwise alienating or disposing of land parcels Kajiado/Kaputiei North/3587 and/or 19734, and from undertaking any further construction or developments on the said parcels
  2. 2.The 1st and 2nd Defendants restrained from interfering with the Plaintiff's possession and occupation of the said parcels and from demolishing or interfering with structures constructed thereon by the Plaintiff
  3. 3.The County Surveyor for Kajiado County to undertake a survey and prepare and file a survey report in Court within 30 days of service, establishing the location and coordinates of the beacons of the two parcels and the structures situated thereon
  4. 4.The parties to provide the County Surveyor with necessary title/ownership documents and to jointly bear the costs of the survey and report in equal parts
  5. 5.The Plaintiff to serve a copy of the ruling and orders on the County Surveyor within fourteen days and follow up on the filing of the report; upon default, the status quo orders shall lapse
  6. 6.Costs of the Plaintiff's Notice of Motion dated 13th December 2011 to be in the cause

Authorities

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Legislation

  • Land Registration ActSection 26
  • Registered Land Act (repealed)Section 28
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)

Cases cited (7)

  • Gitwany Investment Ltd vs Tajmal Ltd & 3 Others
    (2006) e KLR
  • Russell Co Ltd vs Commercial Bank of Africa Ltd & Another
    (1986) KLR 633
  • Kenya Hotels Limited vs Kenya Commercial Bank Ltd & Another
    (2004) 1 KLR
  • M'Ikiara M'mukunya & Another vs Gilbert Kabere Mbijiwe
    Civil Appeal No. 13 of 1980
  • Taj Super Power Cash & Carry Ltd vs Nairobi City Council & 2 Others
    Civil Appeal No. 111 of 2002
  • Giella vs Cassman Brown & Co Ltd
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act

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, "George Nakulo Osallo v Barclays Bank of Kenya & 2 others [2014] KEELC 342 (KLR)", Case Analysis (2014). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2014/342/eng@2014-06-10

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