Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Notice of Motion dated 9th October 2014, filed 10th October 2014)· [2015] KEELC 50 (KLR)

Prishar Wambui Kaguura v Peter Waithaka Kaguura & 5 others [2015] KEELC 50 (KLR)

Environment and Land Court (High Court)
27 November 2015
BOB. N. Olao
1,957 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to stop land owners from dealing with their registered property because the applicant could not prove her ownership claim at an early stage of the case.

What this practically means

#

Executive summary

#
The plaintiff/applicant moved the court by Notice of Motion dated 9th October 2014 seeking interim injunctions restraining the 1st and 2nd defendants from dealing with LR LOC 2/KANDERENDU/1511 and the 3rd and 4th defendants from dealing with LR LOC 2/KANDERENDU/1512, plus a permanent injunction, revocation/cancellation of the subdivisions and title deeds, reinstatement of the original parcel LR LOC 2/KANDERENDU/640, eviction of the 3rd and 4th defendants, and police enforcement. She deponed that the original parcel was jointly registered in her name and that of her son (the 1st defendant), who in December 2007 took the title, sub-divided the land, registered the portions and sold one portion to the 3rd and 4th defendants without her consent, all discovered in 2011. The respondents opposed, contending the land was given to the 1st defendant, that the 3rd and 4th defendants were bona fide purchasers for Ksh. 350,000 in 2010, and that the application was defective and an abuse of process. Olao J held that permanent injunction, cancellation of title and eviction were remedies unavailable at the interlocutory stage, and that the only live question was whether a temporary injunction should issue. Applying Giella v Cassman Brown as clarified by Mrao v First American Bank, the court found no prima facie case: the certificates of search showed the suit properties registered in the respondents' names (and partly in the applicant's own), the Green Card and sale agreements were not availed, and the serious allegation of fraud could only be resolved at trial. The first Giella limb failing, the other limbs were not considered. The Notice of Motion was dismissed with costs in the cause on 27th November 2015.

Key legal issues

#
01

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

Holding

No - the suit properties are registered in the names of the respondents (and partly in the applicant's own name), and fraud was not established on the material presented

Reasoning

The court found the certificates of search showed the original parcel registered in the 1st and 2nd respondents' names as at 2009, no Green Card or sale agreements were availed, and the applicant's allegation of fraud was a serious matter reserved for trial. Since the first Giella limb failed, the other limbs fell away.

p. 4
02

Whether permanent injunction, cancellation of title and eviction could issue at interlocutory stage

Holding

No - such remedies would finally determine the suit and must await trial

Reasoning

The court held that granting a permanent injunction at an interlocutory stage is rare as it may finally dispose of the suit, citing Yego v Tuiya. Cancellation of title and eviction were likewise trial remedies, leaving only a temporary injunction for determination.

p. 3

Legal principles established

#
  • A prima facie case in a civil application is a genuine and arguable case showing an apparent right infringed calling for rebuttal
  • Until a registration is shown to have been fraudulently procured, it vests absolute ownership in the registered proprietor
  • It is a rare case for a court to injunct a registered owner of land
  • An allegation of fraud cannot be determined on an interlocutory application
  • A court considering an interlocutory injunction should take the course carrying the lower risk of injustice

Court orders

#
  1. 1.The applicant's Notice of Motion dated 9th October 2014 and filed 10th October 2014 is dismissed
  2. 2.Costs to be in the cause

Authorities

#

Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 3, 5 and 10; Order 51 Rule 1
  • Civil Procedure ActSections 1A, 1B and 3A
  • Land Registration ActSections 80 and 81

Cases cited (4)

  • YEGO VS TUIYA & ANOTHER
    C.A. Civil Appeal No. 73 of 1985 (1986 K.L.R 726)
  • GIELLA VS CASSMAN BROWN & CO. LTD
    1973 E.A 358
  • MRAO VS FIRST AMERICAN BANK OF KENYA LTD
    C.A Civil Appeal No. 39 of 2002 (2003 eKLR)
  • FILMS ROVER INTERNATIONAL
    1980 3 All. E.R 772
Jurisdiction invoked
Order 40 Rules 1, 3, 5 and 10 and Order 51 Rule 1 of the Civil Procedure Rules (2010); Sections 1A, 1B and 3A of the Civil Procedure Act; Sections 80 and 81 of the Land Registration Act 2012

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Prishar Wambui Kaguura v Peter Waithaka Kaguura & 5 others [2015] KEELC 50 (KLR)", Case Analysis (2015). Not stated in judgment (Notice of Motion dated 9th October 2014, filed 10th October 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/50/eng@2015-11-27

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