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)
The bottom line
#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
#Executive summary
#Key legal issues
#Prima facie case
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
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.
Irreparable loss and balance of convenience
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
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.
Respondents' objection based on registered title and the succession cause
The respondents' arguments on indefeasibility of title and the confirmed grant in the succession cause did not defeat the conservatory orders
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.
Legal principles established
#- 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
#- 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.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.Costs of the application to be in the cause
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.