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ELCAllowedNot stated in the judgment as extracted· [2017] KEELC 82 (KLR)

Kamau Mbogo v Settlement Funds Trustees [2017] KEELC 82 (KLR)

Environment and Land Court
26 September 2017
MOM.C. Oundo
1,049 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The plaintiff moved the court by Notice of Motion dated 4th May 2017 under Section 68(1) of the Land Registration Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking an order of inhibition over L.R NYANDARUA/OL ARAGWAI/613 pending the hearing and determination of his suit, plus costs. The underlying suit seeks a declaration that the excision of 4.4 acres from Plot No. 215 Ol Aragwai Scheme and its creation as Plot 613 and registration in the defendant's name was illegal and unlawful, and an order directing transfer of Plot 613 to the plaintiff. The plaintiff, who was allocated Plot 215 in 1963 and took possession after adjudication, averred that the defendant excised and registered Plot 613 in its name without notice, authority or consent, and has never taken possession, while the plaintiff remains in occupation of the whole parcel. Despite proper service, evidenced by an affidavit of service, the defendant filed no response and did not appear; the court heard the applicant ex-parte. Holding that an inhibition is not an injunction but is provided for under Section 68(1) of the Land Registration Act, which confers discretionary powers, and that the unopposed application was merited given the applicant's possession, the court allowed prayers iii and iv: an inhibition over L.R NYANDARUA/OL ARAGWAI/613 pending the hearing and determination of the suit, with costs in the cause. Judgment was delivered at Nyahururu on 26th September 2017 by M.C. Oundo, Environment and Land Judge.

Key legal issues

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Whether an order of inhibition should issue over L.R NYANDARUA/OL ARAGWAI/613 pending the hearing and determination of the suit

Holding

The application was merited and allowed in terms of prayers iii and iv, an inhibition issuing over the suit land pending hearing and determination of the suit.

Reasoning

The court noted the applicant was allocated Plot No. 215 Ol Aragwai Scheme in 1963, took possession after adjudication and preparation of the RIM, and remained in possession of the whole parcel including the excised Plot 613, which the respondent registered in its name but never possessed. The application was unopposed. An inhibition, though not an injunction, is provided for by Section 68(1) of the Land Registration Act and the court exercised its discretion to preserve the suit property.

p. 2

Legal principles established

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  • The court's power to order an inhibition is discretionary and conferred by Section 68(1) of the Land Registration Act.

Court orders

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  1. 1.An order inhibiting any dealings over L.R NYANDARUA/OL ARAGWAI/613 pending the hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Land Registration ActSection 68(1)
  • Civil Procedure RulesOrder 51 Rule 1
Jurisdiction invoked
Sections 68(1) of the Land Registration Act and Order 51 Rule 1 of the Civil Procedure Rules

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, "Kamau Mbogo v Settlement Funds Trustees [2017] KEELC 82 (KLR)", Case Analysis (2017). Not stated in the judgment as extracted. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/82/eng@2017-09-26

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