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ELCPartially AllowedCase No 170 of 2017· [2017] KEELC 450 (KLR)

Peter Gacoka & 5 others v Joseph Muriithi Kimondo [2017] KEELC 450 (KLR)

Environment and Land Court
13 December 2017
DOD. O. Ohungo
1,233 words in judgment
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The bottom line

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The court refused to stop the landowner's dealings but froze the disputed plots with inhibitions until the ownership dispute is fully heard.

What this practically means

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Executive summary

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The plaintiffs, members of Mugunda United Self-Help Group, moved the court by Notice of Motion dated 19th April 2017 under Order 40 rules 1, 2, 4 and 10 of the Civil Procedure Rules seeking a temporary injunction restraining the defendant from trespassing on, selling, transferring or dealing with twelve plots, Kijabe/Kijabe Block 1/16775 to 16786, subdivisions of Kijabe/Kijabe Block 1/3273. They relied on a sale agreement dated 18th August 2010 under which the group purchased the original parcel from Kago Nduati for Kshs. 850,000 and subdivided it among members, holding title deeds. The defendant opposed, deposing that he had been registered proprietor of the original parcel since 1985 (as a minor) and re-issued a title in 1993; on return from the United Kingdom in 2015 he found the property subdivided and transferred to the plaintiffs, with the green card missing from the registry file. He also filed a counterclaim seeking a declaration that the subdivision was unlawful and void. Applying Giella v Cassman Brown as clarified in Nguruman Limited v Jan Bonde Nielsen, the court held that although the plaintiffs held titles, the defendant genuinely contested the registration and the chain of ownership was unclear; the plaintiffs therefore failed to establish a prima facie case, and the application was dismissed. However, to preserve the subject matter pending trial, the court ordered inhibitions registered against the original parcel and all twelve subdivisions. Costs were awarded in the cause.

Key legal issues

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01

Whether the plaintiffs established a prima facie case for an interlocutory injunction

Holding

No prima facie case was established; the motion was dismissed

Reasoning

Although the plaintiffs hold titles to the subdivided plots, the defendant contests the registration and alleges the subdivision was irregular, pointing to a missing green card and prior ownership of the original parcel since 1985. The court found the chain of registration unclear, so the plaintiffs' titles alone could not guarantee ownership, and the defendant might succeed in nullifying them at trial.

p. 3
02

Whether the suit properties should nonetheless be preserved pending trial

Holding

Inhibitions were ordered against all the suit properties

Reasoning

Notwithstanding the dismissal of the injunction application, the court considered it necessary in the particular circumstances to preserve the properties pending hearing and determination of the suit, ordering registration of inhibitions over the original parcel and all twelve subdivisions to maintain the status quo.

p. 3

Legal principles established

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  • The three Giella conditions are sequential hurdles; if no prima facie case is established, irreparable injury and balance of convenience need not be considered
  • Where a registered title is genuinely contested, title alone does not guarantee ownership for purposes of establishing a prima facie case

Court orders

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  1. 1.Notice of Motion dated 19th April 2017 dismissed
  2. 2.Inhibitions registered against Kijabe/Kijabe Block 1/3273 and Kijabe/Kijabe Block 1/16775 to 16786 pending hearing and determination of the suit
  3. 3.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2, 4 and 10

Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Order 40 rules 1, 2, 4 and 10 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, "Peter Gacoka & 5 others v Joseph Muriithi Kimondo [2017] KEELC 450 (KLR)", Case Analysis (2017). Case No 170 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/450/eng@2017-12-01

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