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ELCDismissedNotice of Motion dated 13th July 2017 in suit filed 7th December 2015 (Nakuru ELC)· [2017] KEELC 473 (KLR)

Margaret W. Muchina (Suing on behalf of Giatu Muchunu Vide Power of Attorney registered as P/A No. 249 of 2014) v Eunice Njeri & another [2017] KEELC 473 (KLR)

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

The bottom line

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A Kenyan landowner cannot freeze dealings with registered land without concrete evidence challenging the owner's title, such as proof of fraud or misrepresentation.

What this practically means

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Executive summary

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By a Notice of Motion dated 13th July 2017, the plaintiff Gitau Muchunu, suing through his attorney Margaret W. Muchina under a registered power of attorney, sought a prohibitory order (inhibition) restraining any dealings with land parcel Gilgil/Karunga Block 5/228 pending the full hearing of the suit, together with costs. Prayer 3, for substituted service of summons on the 1st defendant, had been dealt with at the certificate of urgency stage. The defendants neither attended court nor filed a response, and the court, satisfied with service, proceeded to hear the application. The supporting affidavit deposed that the 1st defendant was in possession of the original title deed and that the applicant feared she might transfer or charge the property to defeat the cause of justice. The court, applying sections 68 and 69 of the Land Registration Act, held that an inhibition curtails a registered proprietor's rights under Article 40 of the Constitution and sections 24-26 of the Act, and should not be granted lightly. The applicant was required to demonstrate a prima facie case with a probability of success, meaning a likelihood of obtaining cancellation of the defendant's title at trial. Finding no evidence challenging the 1st defendant's title and no allegation of fraud or misrepresentation, the court dismissed the prayer for inhibition with costs in the cause. Judgment delivered at Nakuru on 14th December 2017 by D. O. Ohungo, J.

Key legal issues

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01

Whether the applicant met the threshold for an inhibition under sections 68 and 69 of the Land Registration Act

Holding

The application was dismissed as the applicant failed to adduce concrete evidence challenging the registered proprietor's title

Reasoning

The court held that an inhibition restricts a registered proprietor's statutory rights under Article 40 of the Constitution and sections 24-26 of the Land Registration Act, and should not be granted lightly. The applicant must demonstrate a prima facie case with probability of success, i.e. a likelihood of obtaining cancellation of the title at trial. The supporting affidavit only deposed that the 1st defendant held the original title deed and that the applicant feared a transfer or charge; no fraud or misrepresentation was alleged. Possession of title documents and dealing in property are within the proprietor's rights and can only be curtailed on concrete evidence, which was absent.

p. 2

Legal principles established

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  • An inhibition curtails the registered proprietor's right to deal freely with land, is an order not to be granted lightly, and requires demonstration of a prima facie case with probability of success, meaning a likelihood of obtaining cancellation of the title at the conclusion of the main suit, manifest from the evidence

Court orders

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  1. 1.The prayer for inhibition is dismissed
  2. 2.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Land Registration ActSections 24 to 26
  • Land Registration ActSections 68 and 69
Jurisdiction invoked
Sections 68 and 69 of the Land Registration Act (court's power to inhibit registered dealings); Article 40 of the Constitution and Sections 24-26 of the Land Registration Act referenced on proprietors' rights

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Margaret W. Muchina (Suing on behalf of Giatu Muchunu Vide Power of Attorney registered as P/A No. 249 of 2014) v Eunice Njeri & another [2017] KEELC 473 (KLR)", Case Analysis (2017). Notice of Motion dated 13th July 2017 in suit filed 7th December 2015 (Nakuru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/473/eng@2017-12-14

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