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ELCPartially AllowedPetition dated 2016 (Notice of Motion dated 23rd March 2016), Environment and Land Court at Thika· [2017] KEELC 687 (KLR)

Alfred Nganga Njau & another v Attorney General & 3 others [2017] KEELC 687 (KLR)

Environment and Land Court of Kenya
18 December 2017
LGL. GACHERU
2,504 words in judgment
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The bottom line

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What this practically means

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Executive summary

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The Court ruled on a Notice of Motion dated 23rd March 2016 in which the Petitioners sought a temporary injunction restraining the 4th Respondent from partitioning, alienating or dealing with plot Ruiru/Kiu/Block 1/372 pending hearing of a Petition challenging the proceedings of the Githurai Land Disputes Tribunal and its confirmation as a judgment of the Chief Magistrate's Court at Thika in DO Case No.3 of 2011. The Petitioners alleged the tribunal award, made without hearing the 1st Petitioner, was a nullity for want of jurisdiction and violated his rights under Articles 40(2), 47(1) and 50 of the Constitution. The 4th Respondent, now a registered joint proprietor following the confirmed award, opposed the application, contending the dispute was res judicata, that the Court lacked original jurisdiction over a matter originating before a Land Disputes Tribunal, and that the application failed the test for injunctions. Applying the Giella v Cassman Brown criteria, the Court found that whether the 4th Respondent's title was acquired through fraud, misrepresentation, illegally or through a corrupt scheme was a disputed issue reserved for trial after oral evidence and cross-examination; accordingly the Applicants failed to establish a prima facie case with probability of success. However, on the balance of convenience, the Court found it tilted in favour of maintaining the status quo. It issued a temporary injunction restraining the 4th Respondent from partitioning or alienating the suit property pending determination of the Petition, ordered costs of the application to be in the cause, and directed the parties to prepare the main Petition for hearing within 45 days.

Key legal issues

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01

Whether the Applicants established a prima facie case

Holding

They did not; whether the 4th Respondent's title was fraudulently or illegally acquired is a disputed issue reserved for trial

Reasoning

The Applicants alleged the process leading to the 4th Respondent's registration as joint proprietor was flawed. The Court held that such an allegation can only be determined after oral evidence tested by cross-examination at the main trial, and on affidavit evidence it could not find the registration flawed, so no prima facie case was made out.

p. 4
02

Whether an injunction should issue on the balance of convenience

Holding

Yes; the balance of convenience favours maintaining the status quo - joint registration retained and partition/alienation restrained pending the Petition

Reasoning

Having failed at the first Giella limb, the Court nonetheless found the balance of convenience tilted towards maintaining the status quo: the property to remain registered in both names, with the 4th Respondent restrained from severing or partitioning the title until the Petition is heard and determined.

p. 5

Legal principles established

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  • Grant of an interlocutory injunction is a judicial discretion to be exercised judicially
  • The Giella conditions for injunction are sequential; where no prima facie case is shown the court may not proceed to the second limb
  • Registration under the Land Registration Act confers indefeasible title challengeable only on fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition

Court orders

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  1. 1.A temporary injunction restraining the 4th Respondent, her agents, servants and/or employees from partitioning and/or alienating LR No. Ruiru/Kiu Block 1/372 pending the hearing and determination of the Petition
  2. 2.Costs of the application to be in the cause
  3. 3.Parties to prepare the main Petition for hearing within 45 days and have it fixed for hearing expeditiously

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40(2), 47(1), 50
  • Land Registration ActSections 24, 25, 26(1)(a)&(b)
  • Land Disputes Tribunal Act No.8 of 1990 (repealed)Section 7(2)

Cases cited (4)

  • David Kamau Gakuru vs National Industrial Credit Bank Ltd
    Civil Appeal No.84 of 2001
  • Edwin Kamau Muniu vs Barclays Bank of Kenya Ltd
    Nairobi HCCC No. 1118 of 2002
  • Giella vs Cassman Brown & Co. Ltd
    1973, EA 358
  • The Attorney General vs Kenya Commercial Bank Ltd, Afraha Educational Development Co. Ltd & Others
    Nakuru CCC No.260 of 2004
Jurisdiction invoked
Original constitutional petition jurisdiction of the High Court/Environment and Land Court under the Constitution (Articles 40, 47 and 50 invoked in the Petition); not expressly stated

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, "Alfred Nganga Njau & another v Attorney General & 3 others [2017] KEELC 687 (KLR)", Case Analysis (2017). Petition dated 2016 (Notice of Motion dated 23rd March 2016), Environment and Land Court at Thika. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/687/eng@2017-12-18

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