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ELCOtherNot stated in the judgment· [2016] KEELC 21 (KLR)

Ndunde Investments Limited v Jackson Mutugi Mwangi & 2 others [2016] KEELC 21 (KLR)

Environment and Land Court
2 December 2016
LGL. GACHERU
1,092 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When two people hold titles to the same Kenyan land, the court freezes all dealings rather than picking a winner before trial.

What this practically means

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Executive summary

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The Plaintiff, through an application dated 9th June 2015, sought injunction orders restraining the 1st and 2nd Defendants from entering, remaining on, selling or alienating LR No. Ruiru Township/239 pending the hearing and determination of the suit. The Plaintiff, deponing through its Managing Director Isaac Gichia Mbugua, claimed to be the registered owner since a title dated 9th August 2001 and alleged that a certificate of lease issued to the Defendants on 12th February 2015 was fraudulently procured. The 1st Defendant countered that its title was validly issued by the 3rd Defendant, that it had occupied the land since 2009 and leased it to cultivating tenants, and that the Plaintiff had manipulated the green card. The Defendants further challenged Mr Mbugua's authority, alleging he was an imposter, citing disparities between the names 'Isaac' and 'Isack' and differing signatures in the company records. The court, per L. Gacheru J, confirmed the disparities but deferred the imposter question to trial. On the injunction, the court noted both parties held titles to the leasehold interest and that the Defendants appeared as current registered proprietors on searches by both sides. Applying Section 26 of the Land Registration Act and the Court of Appeal's decision in Munyu Maina v Hiram Gathiha Maina, it held that where a title is challenged its holder must prove the legality of its acquisition, and that the dispute required trial with cross-examination. The court declined the injunction sought but, under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, ordered status quo: both parties restrained from selling, transferring, leasing, charging, developing or otherwise alienating the property pending determination of the suit. Costs of the application were reserved to the cause.

Key legal issues

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01

Whether the Plaintiff was entitled to an injunction over LR No. Ruiru Township/239

Holding

The injunction was refused but the court preserved the suit property by way of a status quo order restraining both parties from alienating or developing the land pending trial

Reasoning

Both the Plaintiff and the Defendants hold titles to the leasehold interest in the same property. Section 26 of the Land Registration Act deems a certificate of title conclusive evidence of proprietorship, but where a title is challenged the holder must prove the legality of its acquisition. Conflicting titles and allegations of fraud require full trial with evidence tested by cross-examination. Interim preservation, not an injunction in the terms sought, was appropriate under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act.

p. 2
02

Whether Isaac Gichia Mbugua had capacity to swear affidavits on behalf of the Plaintiff

Holding

The imposter allegation was left for trial, the court noting apparent disparities in name and signature

Reasoning

The Defendants alleged that the deponent was an imposter, pointing to disparities between the name 'Isaac' in the official search and 'Isack' in the memorandum and articles of association, and differences in his signature. The court's own perusal confirmed the disparities but held that whether he is an imposter is a matter requiring further evidence at trial. It did not strike out the affidavits.

p. 2

Legal principles established

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  • Where a party's certificate of title is under challenge, it is not enough to wave the instrument of title as proof of ownership; the legality of how the title was acquired must be proved

Court orders

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  1. 1.Order of status quo that both Plaintiff and Defendants, by themselves or through representatives, agents or servants, are restrained from selling, transferring, leasing, charging, undertaking developments or in any other manner alienating or disposing of LR No. Ruiru Township/239 pending the hearing and determination of the suit or until further orders
  2. 2.Costs of the application be in the cause

Authorities

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Legislation

  • Land Registration ActSection 26
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)

Cases cited (1)

  • Munyu Maina Vs Hiram Gathiha Maina
    Civil Appeal number 239 of 2009
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, "Ndunde Investments Limited v Jackson Mutugi Mwangi & 2 others [2016] KEELC 21 (KLR)", Case Analysis (2016). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/21/eng@2016-12-02

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