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ELCAllowedNotice of Motion dated 27th July, 2017 (suit originating in Machakos High Court concerning KAJIADO/KAPUTIEI-CENTRAL/496)· [2017] KEELC 14 (KLR)

Philip Mutiso Makau v Kianda Foundation Educational Trust & 3 others [2017] KEELC 14 (KLR)

Environment and Land Court
14 November 2017
COChristine Ochieng
1,137 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court blocked any dealings on a disputed title, confirming an injunction alone does not stop a landowner from transferring land.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 27th July 2017 brought by the Plaintiff, Philip Mutiso Makau, under Section 13 of the Environment and Land Court Act and Sections 68, 69 and 70 of the Land Registration Act, seeking an inhibition order against title to land parcel KAJIADO/KAPUTIEI-CENTRAL/496 pending hearing of the main suit. The suit, commenced in the Machakos High Court, claims the 1st Defendant obtained an improper registration over the suit land, and on 19th June 2014 the Plaintiff obtained conservatory orders restraining the 1st Defendant from altering the land. In 2017 the Plaintiff noticed a green container on the land, beacons placed and a fence being erected, and apprehended that the land might be sold to third parties. He also complained that the 3rd Defendant (the Registrar) refused to issue a certificate of official search unless he surrendered the title deed. The 1st Defendant, through trustee Dorothy Khamisi, opposed the application, asserting sole proprietorship and describing the application as hearsay and a delaying tactic ahead of the hearing scheduled for 20th September 2017. The 2nd, 3rd and 4th Defendants did not respond. The court framed a single issue: whether an inhibition order should be registered against the title. Holding that Sections 68 and 70 exist to protect the validity of a title, that the existing injunction did not protect the title itself, that two parties staked competing claims, and that the 3rd Defendant had been uncooperative, the court found the 1st Defendant would suffer no prejudice. The court allowed the Notice of Motion as merited, registering an inhibition against the suit land's title, with costs in the cause.

Key legal issues

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01

Whether an inhibition order should be registered against the title to KAJIADO/KAPUTIEI-CENTRAL/496 pending hearing and determination of the main suit

Holding

Yes; the inhibition order was warranted notwithstanding the existing injunctive orders, because no order protected the title itself and the Registrar (3rd Defendant) had been uncooperative.

Reasoning

The court noted injunction orders of 19th June 2014 restrained the 1st Defendant from altering the suit land, but no order protected the title. The plaintiff apprehended transfer to third parties; the 3rd Defendant refused an official search without surrender of the title deed, preventing the plaintiff from ascertaining the registration status. Two parties staked claim to the land, and the court found the 1st Defendant would suffer no prejudice from registration of an inhibition.

p. 2

Legal principles established

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  • Sections 68 and 70 of the Land Registration Act exist to protect the validity of a title until the occurrence of an event, and an inhibition may issue even where injunction orders are already in place since an injunction restrains activities but does not protect the title itself.
  • Where two parties stake competing claims to land, the court as independent arbiter should protect each party's position pending final determination, and an inhibition will not issue to the prejudice of the registered proprietor where none is shown.

Court orders

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  1. 1.The Notice of Motion dated 27th July, 2017 is allowed as merited (an inhibition order to be registered against the title to the suit land pending hearing and determination of the main suit)
  2. 2.Costs in the cause

Authorities

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Legislation

  • Environment and Land Court ActSection 13
  • Land Registration ActSections 68, 69, 70
Jurisdiction invoked
Section 13 of the Environment and Land Court Act and Sections 68, 69 and 70 of the Land Registration 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, "Philip Mutiso Makau v Kianda Foundation Educational Trust & 3 others [2017] KEELC 14 (KLR)", Case Analysis (2017). Notice of Motion dated 27th July, 2017 (suit originating in Machakos High Court concerning KAJIADO/KAPUTIEI-CENTRAL/496). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/14/eng@2017-11-14

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