Daniel Milaken Ndilai & another v Shenia Ene Nkirrrumu & another [2017] KEELC 328 (KLR)
The bottom line
#The court dismissed a family's attempt to block their stepmother's land sale because they had no proof of ownership or fraud.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiffs established a prima facie case for a temporary injunction
No prima facie case was established; the Defendants were registered as absolute owners of the suit land in 1990 and there was no evidence of fraud in their allocation.
The court examined the Probe Committee minutes and official searches which showed the Defendants were allocated and registered as first owners of parcel KAJIADO/LOODARIAK/319 on 3rd May, 1990. Section 26(1) of the Land Registration Act makes the certificate of title prima facie evidence of absolute ownership, challengeable only on fraud, misrepresentation, illegality or procedural irregularity. The Plaintiffs, despite alleging irregular substitution of their father's name, produced no proof of fraud or any ownership evidence over the suit land, and the Adjudication Officer's 1989 decision to change ownership to the two wives was never appealed.
Whether the Plaintiffs would suffer irreparable loss not compensable by damages
No, the Plaintiffs provided no proof of ownership and any loss would be compensable by damages.
The court noted the Plaintiffs offered no proof of ownership over the suit land. Both Plaintiffs and Defendants had been allocated their own parcels by the Loodariak Group Ranch at the same time, and it was the Defendants who were the registered proprietors of the suit land. Given the Plaintiffs' lack of demonstrated ownership interest, the court found they would suffer no harm that damages could not adequately compensate, so the second Giella principle also failed.
Where the balance of convenience lies
The balance of convenience favoured the Defendants.
Having failed on the first two limbs of the Giella test, the court nonetheless addressed the balance of convenience. It found the Defendants, as registered proprietors, would suffer greater inconvenience if restrained from dealing with their land than the Plaintiffs would suffer if the injunction were denied. This finding reinforced the dismissal, though the primary ground was the absence of a prima facie case.
Legal principles established
#- A registered proprietor's certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud or misrepresentation or where acquired illegally, unprocedurally or through a corrupt scheme.
Court orders
#- 1.Dismissal of the Plaintiffs' Notice of Motion dated 2nd May, 2014
- 2.Costs of the application to the Defendants
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act and Order 40 Rules 1 & 2 and Order 50 Rule 1 of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Daniel Milaken Ndilai & another v Shenia Ene Nkirrrumu & another [2017] KEELC 328 (KLR)", Case Analysis (2017). Notice of Motion dated 2nd May, 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/328/eng@2017-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.