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ELCAllowedNotice of Motion dated 10th November 2017· [2017] KEELC 565 (KLR)

Douglas Kamau Ngotho v Kimoiyo Company Ltd & another [2017] KEELC 565 (KLR)

Environment and Land Court
19 December 2017
DOD. O. Ohungo
850 words in judgment
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The bottom line

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A Kenyan landowner who proved registered ownership got a court order blocking a replacement title and any interference with his land.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (D. O. Ohungo, J) determined the plaintiff's Notice of Motion dated 10th November 2017 brought under Order 40 rule 2 of the Civil Procedure Rules. The plaintiff, registered proprietor of Nakuru Municipality Block 12/290 and 12/291, parcels arising from the sub-division of Nakuru Municipality Block 12/128, sought to restrain the 2nd defendant from issuing a fresh Certificate of Lease over Block 12/128 pursuant to Gazette Notice No. 9817 of 6th October 2017 (notifying loss of the original), and to restrain the defendants from interfering with, alienating or disposing of his parcels pending the hearing of the suit. The application proceeded unopposed: although served, the defendants neither appeared nor filed a response. The court applied the Giella v Cassman Brown test for interlocutory injunctions as refined by the Court of Appeal in Nguruman Limited v Jan Bonde Nielsen, holding that the three conditions are sequential hurdles. On the unchallenged evidence — Certificate of Lease, Official Searches, Registry Index Map and rates receipts — the plaintiff was found to have established a prima facie case with probability of success, and to face irreparable damage if a new certificate of title issued and adverse dispositions followed. The court granted both restraining orders and awarded costs to the plaintiff. The judgment is dated 19th December 2017.

Key legal issues

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01

Entitlement to an interlocutory injunction on unchallenged evidence of registered proprietorship

Holding

The plaintiff, being the registered proprietor of the suit properties arising from sub-division of Nakuru Municipality Block 12/128, established a prima facie case, and irreparable damage would follow issuance of a new Certificate of Lease; the injunction issued.

Reasoning

The court applied the Giella v Cassman Brown test as refined in Nguruman Limited v Jan Bonde Nielsen, requiring sequential satisfaction of the three conditions. The plaintiff produced a Certificate of Lease, Certificates of Official Search, the Registry Index Map and rates payment receipts. The defendants, though served, filed no response and tendered no evidence to challenge the plaintiff's position. The court found a likelihood of dispositions adverse to the plaintiff's interest if a new certificate of title issued, constituting irreparable damage.

p. 2

Legal principles established

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  • The three Giella conditions are sequential hurdles; if a prima facie case is not established, irreparable injury and balance of convenience need not be considered.

Court orders

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  1. 1.An order restraining the 2nd defendant/respondent from issuing a Certificate of Lease to the 1st defendant/respondent in respect of Nakuru Municipality Block 12/128 as per Kenya Gazzette Notice No. 9817 of 6th October 2017
  2. 2.An order restraining the defendants from alienating, disposing or in any way interfering with the plaintiff's parcels of land known as Nakuru Municipality Block 12/290 and Nakuru Municipality Block 12/291 pending the hearing and determination of this suit
  3. 3.Costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 2

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 rule 2 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, "Douglas Kamau Ngotho v Kimoiyo Company Ltd & another [2017] KEELC 565 (KLR)", Case Analysis (2017). Notice of Motion dated 10th November 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/565/eng@2017-12-19

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