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ELCAllowedNot stated in judgment· [2015] KEELC 597 (KLR)

Samwel Ojwang Mumbo & another v James Felix Gitau Githunguri [2015] KEELC 597 (KLR)

Environment & Land Court
12 March 2015
MSMunyao Sila
530 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 blocked the sale and registration of disputed plots, protecting buyers' possession until fraud allegations are tested at trial.

What this practically means

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Executive summary

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This was an interlocutory ruling in a land suit filed by plaint on 24 September 2014 before the Environment and Land Court at Nakuru. The plaintiffs, members of Camapepas Self Help Group, alleged that the group bought land for sub-division among members, and that the group's Vice Chairman, the late Zacharia Jaji, who was mandated to process individual title deeds, fraudulently sold the plaintiffs' plots (Miti Mingi/Mbaruk/5217 and 5215) to the defendant and colluded to register the titles in the defendant's name. The plaintiffs claimed they were in possession but the defendant threatened to dispossess them. Together with the plaint they sought an interlocutory injunction restraining the defendant from disposing of the land or interfering with their possession pending trial. The application, supported by the 1st plaintiff's affidavit, was served but unopposed: the defendant neither entered appearance nor filed a response. Munyao Sila J held that fraud in the registration could not be determined at that stage and would be a matter for trial, but that the balance of convenience lay in preserving the subject matter and maintaining the status quo. The court barred the defendant from selling, charging, leasing or otherwise disposing of the two parcels; issued an order of inhibition against registration of any disposition over them; barred the defendant from entering, developing on, or interfering with the plaintiffs' possession; and ordered costs of the application to be costs in the cause.

Key legal issues

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01

Whether to preserve the suit property by way of injunction and inhibition pending trial

Holding

Interim orders granted to preserve the suit land and maintain the plaintiffs' possession, since the application was unopposed and the balance of convenience favoured preservation

Reasoning

The plaintiffs pleaded fraud in the registration of their purchased plots in the defendant's name. The defendant was served but entered no appearance and filed no response. The court could not determine fraud at interlocutory stage but found the balance of convenience favoured preserving the subject matter and maintaining status quo pending hearing, and issued injunction and inhibition orders.

p. 1

Legal principles established

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  • Fraud in the registration of land cannot be determined at interlocutory stage but only after trial

Court orders

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  1. 1.Defendant barred from selling, charging, leasing, or otherwise disposing of land parcels Miti Mingi/Mbaruk/5215 and 5217
  2. 2.Order of inhibition barring registration of any disposition in the register of the land parcels Miti Mingi/Mbaruk/5215 and 5217
  3. 3.Defendant barred from entering, developing, or interfering with the plaintiffs' possession of the suit parcels
  4. 4.Costs of the application to be costs in the cause
Jurisdiction invoked
Inherent jurisdiction to grant interim relief pending hearing of suit (interlocutory application in a land suit)

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, "Samwel Ojwang Mumbo & another v James Felix Gitau Githunguri [2015] KEELC 597 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/597/eng@2015-03-12

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