Thomas Shadrack Otochi & another v Daniel Mosomi Mogere & another [2016] KEELC 820 (KLR)
The bottom line
#A Kisii court blocked the sale of land bought by buyers living on it since 2007, showing occupation can protect buyers even without registered title.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiffs established a prima facie case for a temporary injunction
Although the plaintiffs may not strictly have demonstrated a prima facie case with probability of success, their case was not frivolous or hopeless; they had an arguable case warranting preservation of the suit property
The 1st defendant admitted selling portions to the plaintiffs in 2007 and pleaded that loss of the title deed prevented completion of the transfers; he denied executing the guarantee and charge. The plaintiffs had occupied and developed the land since 2007. The validity of the charge, alleged to be a forgery, could only be determined at trial. The court therefore found it a proper case to preserve the subject matter pending hearing.
Balance of convenience
The balance of convenience tilted in the plaintiffs' favour given their occupation, possession and developments since 2007; the 2nd defendant had a fallback position via the third party notice to the borrower
The plaintiffs were in occupation and possession and had effected developments on the suit property. The 2nd defendant, having obtained leave to issue a third party notice to Evans Ngota Ndege, the borrower, had an alternative recourse. Maintaining the status quo pending trial was the just course.
Legal principles established
#- Where the validity of a charge is challenged as forgery, the validity can only be determined at trial when witnesses testify and are cross-examined
- A party in occupation, possession and development of land since 2007 tilts the balance of convenience in favour of maintaining the status quo pending trial
Court orders
#- 1.An order of injunction restraining the defendants, their agents and/or servants from disposing or offering for sale land parcel No. West Mugirango/Siamani/3219 pending the hearing and determination of the suit
- 2.Costs of the application shall be in the cause
- Jurisdiction invoked
- Inherent jurisdiction of the High Court/Environment and Land Court to grant interim preservation pending suit (injunction application under the plaint proceedings; Land Registration Act, 2012 referenced for the charge)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Shadrack Otochi & another v Daniel Mosomi Mogere & another [2016] KEELC 820 (KLR)", Case Analysis (2016). Plaint dated 5th March 2015; Notice of Motion dated 5th March 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/820/eng@2016-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.