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ELCDismissedNot stated in excerpt (Narok ELC suit; related suit: Narok CMCC No. 107 of 2013)· [2016] KEELC 836 (KLR)

Nabalo Kariankei & another v Rukuti Koriata & 6 others [2016] KEELC 836 (KLR)

Environment and Land Court
18 May 2016
MSMunyao Sila
1,063 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 refused to block a land sale because the family suing had no documents proving their claim and waited 18 years to go to court.

What this practically means

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Executive summary

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The plaintiffs, legal representatives of the late Musama Kankei, sued alleging that their deceased father, a member of Olgilai Group Ranch dissolved in 1996, was entitled to 25 acres but received title to only 10 acres, with the remaining 15 acres allegedly obtained by the 1st defendant through fraud in collusion with other defendants. They sought cancellation of the 1st defendant's title to Narok/Cis Mara Ololulunga/3889 and a permanent injunction. By a motion dated 1 March 2016 (an amendment of an application filed 17 December 2014, which dropped a prayer to stay Narok CMCC No. 107 of 2013), they sought an interlocutory injunction restraining the defendants from selling, alienating, leasing, charging, transferring or constructing on the suit property pending trial. The court applied the Giella vs Cassman Brown principles. It found that apart from bare assertion, no evidence established that the deceased was entitled to 25 acres: the group ranch register produced listed only members' names without acreages. Title of the 1st defendant had issued on 29 July 1996, yet the suit was filed on 28 November 2014 with no explanation for the more than 18-year delay, raising a question of limitation. Critically, no evidence of fraud in the procurement of the 1st defendant's title was shown. Concluding that no prima facie case with a probability of success had been demonstrated, and declining to consider the balance of convenience as it was not in doubt, the court dismissed the application with costs on 18 May 2016 (Munyao Sila J, Environment & Land Court, Nakuru).

Key legal issues

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01

Whether the plaintiffs established a prima facie case with a probability of success

Holding

No. Apart from mere assertion, no evidence supported the claim that the deceased was entitled to 25 acres, and no evidence was shown that the 1st defendant procured his title by fraud. The 18-year delay from issuance of title (29 July 1996) to filing of suit (28 November 2014) was also unexplained.

Reasoning

The court applied the Giella vs Cassman Brown test. The group ranch register produced listed only names of members without acreages, so it could not substantiate the claim to 25 acres. There was no evidence of fraud against the 1st defendant, and no explanation for filing suit over 18 years after title issued. The court found no prima facie case and did not reach the balance of convenience.

p. 2
02

Whether the balance of convenience required consideration

Holding

Not applicable. Since the court was not in doubt as to the absence of a prima facie case, the balance of convenience did not arise.

Reasoning

The Giella test is sequential; having found no prima facie case, the court stated it was not in doubt and therefore need not consider the balance of convenience. The application was accordingly dismissed with costs.

p. 2

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case with a probability of success, show irreparable loss if the injunction is not granted, and if in doubt the court decides on a balance of convenience (Giella vs Cassman Brown principles).
  • Mere assertion of entitlement, unsupported by documentary or other evidence (e.g. a register that does not disclose acreages), does not establish a prima facie case; unexplained inordinate delay in suing after registration undermines the claim.

Court orders

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  1. 1.The plaintiffs' amended application dated 1 March 2016 for interlocutory injunction is dismissed
  2. 2.Costs of the application awarded to the 1st defendant

Authorities

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Cases cited (1)

  • Giella vs Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (application for injunction pending hearing of 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, "Nabalo Kariankei & another v Rukuti Koriata & 6 others [2016] KEELC 836 (KLR)", Case Analysis (2016). Not stated in excerpt (Narok ELC suit; related suit: Narok CMCC No. 107 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/836/eng@2016-05-18

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