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ELCPartially AllowedApplication dated 13th July 2017 (suit number not stated in the judgment)· [2017] KEELC 331 (KLR)

Tito Makari Ataka v Mary Wairimu Bahati & another (all sued as administratix and personal representative of the Estate of Benedictor Bahati Makani (Deceased) [2017] KEELC 331 (KLR)

Environment and Land Court of Kenya
14 December 2017
3,083 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kakamega court froze two land titles pending trial, holding that even registered owners cannot dispose of disputed land while a trust claim is unresolved.

What this practically means

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Executive summary

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The applicant, Tito Makari Ataka, administrator ad litem of the estate of Margaret Ayoti Ataka (deceased), moved the court by notice of motion dated 13th July 2017 under Order 40 rules 1, 2 and 4 of the Civil Procedure Rules and section 68 of the Land Registration Act 2012. He sought restriction and inhibition of any registration or dealings with land parcels BUTSOTSO/SHIKOTI/3673 and 3674, and an injunction restraining the defendants — administrators of the estate of Benedicto Bahati Makani (deceased) — from cancelling or altering any registration on those titles. His case was that a 19th July 2004 agreement created a trust under which Benedicto Bahati Makani held parcel BUTSOTSO/SHIKOTI/1046, out of which the suit parcels were mutated, in trust for Margaret Ayoti Ataka and her estate, and that the respondents were now inviting prospective buyers to the land. The respondents countered that the registered proprietors held indefeasible titles under section 26 of the Land Registration Act, that no trust was created since the land was registered in a third party's name at the material time, and that the applicant's remedy, if any, lay in the succession court. Applying the Giella v Cassman Brown principles, the court found the applicant had established a prima facie case with chances of success and that he stood to suffer loss not adequately compensable in damages. Noting the respondents' own averment that they had no intention of altering or cancelling any registration, the court held they would suffer no prejudice. The court allowed the application, granting both conservatory orders pending the hearing and determination of the suit, with costs of the application in the cause.

Key legal issues

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01

Prima facie case

Holding

The applicant established a prima facie case with chances of success based on the 2004 agreement alleged to have created a trust over the suit parcels

Reasoning

The court found as fact that parcels 3673 and 3674 were created out of parcel 1046 and that the applicant's claim rested on a 19th July 2004 agreement under which the registered proprietor allegedly held the land in trust for Margaret Ayoti Ataka and her personal representatives. On that material the court was satisfied the applicant showed an infringement of a right with a probability of success at trial.

p. 5
02

Irreparable loss and balance of convenience

Holding

The applicant showed loss not adequately compensable in damages, and the respondents would suffer no prejudice since they averred no intention to alter or cancel any registration

Reasoning

The court noted the application only sought preservation of the subject matter and maintenance of the status quo. The 1st defendant's replying affidavit averred no intention of altering or cancelling any registration on the suit land, so the respondents would suffer no prejudice or loss if the orders were granted, tilting the equities in favour of the applicant.

p. 5
03

Respondents' objection based on registered title and the succession cause

Holding

The respondents' arguments on indefeasibility of title and the confirmed grant in the succession cause did not defeat the conservatory orders

Reasoning

The respondents relied on section 26 of the Land Registration Act asserting absolute ownership, and argued the applicant's remedy lay in the succession court for revocation of the confirmed grant. The court acknowledged their absolute ownership but held the application merely sought to preserve the titles and maintain the status quo pending trial, which was consistent with their own averment of no intention to deal with the land.

p. 5

Legal principles established

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  • Interlocutory injunctions are determined on the Giella v Cassman Brown principles: prima facie case with probability of success, irreparable loss not compensable in damages, and balance of convenience
  • An interlocutory injunction is an equitable relief and may be refused where the applicant's conduct does not meet the approval of a court of equity
  • Under section 26 of the Land Registration Act a certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to challenge only for fraud, misrepresentation or illegal/unprocedural acquisition

Court orders

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  1. 1.An order restricting and/or inhibiting any registration or dealings with title numbers BUTSOTSO/SHIKOTI/3673 and BUTSOTSO/SHIKOTI/3674 pending the hearing and determination of the suit
  2. 2.An order of injunction restraining the defendants/respondents, their agents, servants and/or employees from cancelling and/or altering any registration on title numbers BUTSOTSO/SHIKOTI/3673 and BUTSOTSO/SHIKOTI/3674 pending the hearing and determination of the suit
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2 and 4
  • Land Registration Act 2012section 68
  • Land Registration Actsection 26
  • Law of Succession (referenced by respondents)not specified

Cases cited (3)

  • GIELLA VS CASSMAN BROWN & CO. LTD
    1973 E.A 358
  • Mrao Limited vs. First American Bank of Kenya Limited & 2 others
  • Paul Gitonga Wanjau vs. Gathuthi Tea Factory Company Ltd & 2 others
    [2016] eKLR
Jurisdiction invoked
Order 40 rules 1, 2 and 4 of the Civil Procedure Rules and section 68 of the Land Registration Act 2012

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, "Tito Makari Ataka v Mary Wairimu Bahati & another (all sued as administratix and personal representative of the Estate of Benedictor Bahati Makani (Deceased) [2017] KEELC 331 (KLR)", Case Analysis (2017). Application dated 13th July 2017 (suit number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/331/eng@2017-12-14

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