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ELCDismissedPlaint dated 10th March 2017 (Notice of Motion dated 10th March 2017)· [2017] KEELC 1085 (KLR)

Nyambura Kamau v Teresia Wanjiku Wainaina [2017] KEELC 1085 (KLR)

Environment and Land Court
10 November 2017
LGL. Gacheru
2,444 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to block a disputed landowner's actions, ruling that competing title deeds can only be resolved at a full trial.

What this practically means

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Executive summary

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Nyambura Kamau sued Teresia Wanjiku Wainaina seeking, among other reliefs, a declaration that she is the bona fide registered owner of land parcels Ruiru/Ruiru East Block 2/5000 and 5002, and simultaneously moved the court for a temporary injunction restraining the Defendant from occupying, constructing on, transferring or otherwise interfering with the suit properties. The Plaintiff claimed she bought shares in Nyakinyua Investment Ltd in 1976, was balloted and registered as proprietor in 1992, and enjoyed quiet possession until the Defendant trespassed at the end of 2016, placing shipment containers and digging foundations. The Defendant countered that she was registered on 26th August 1988 after balloting, had fenced the land, grown hay grass and placed containers for over two years. The court, applying the Giella v Cassman Brown criteria, found two sets of competing title deeds and that only one set could be genuine, but that this could not be determined on affidavit evidence; the contested letter and unattached police report could only be tested at trial, and allegations of fraud require strict proof. The Plaintiff failed to establish a prima facie case with probability of success; damages would be an adequate remedy; and the balance of convenience favoured maintaining the status quo with the Defendant in possession. The Notice of Motion dated 10th March 2017 was dismissed entirely with costs in the cause, but the court directed that status quo be maintained, with the Defendant remaining in possession and occupation while restrained from selling, alienating, subdividing, charging, constructing or otherwise interfering with the preservation of the suit properties.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

Plaintiff did not establish a prima facie case as the genuineness of two competing sets of title deeds could only be determined at trial

Reasoning

Both parties hold title deeds over the same parcels; a property can only have one registration document. The Plaintiff's possession claim lacked tangible evidence, her letter of 26th November 2015 was contested and could only be authenticated at trial, and the alleged police finding was unsupported by any report. Fraud allegations require evidence tested by cross-examination, not affidavit evidence.

p. 4
02

Irreparable loss and adequacy of damages

Holding

Any loss to the Plaintiff would be compensable by damages if she succeeds at trial

Reasoning

The Defendant admitted placing containers on the land for commercial purposes some time ago, while the Plaintiff had no tangible evidence of possession. In the event the main suit succeeds, the Defendant can be ordered to compensate the Plaintiff by an award of damages, making an injunction unnecessary.

p. 4
03

Balance of convenience

Holding

The balance of convenience tilts towards maintaining the status quo, with the Defendant remaining in possession but restrained from further dealing with the land

Reasoning

The Defendant was probably in possession and use of the properties and her titles were registered first. Pending determination of the real owner, the status quo - Defendant in possession with the containers intact - should be maintained, subject to restraints on selling, charging, constructing or otherwise interfering with preservation of the suit properties.

p. 4

Legal principles established

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  • Where there are competing title deeds and weighty issues, the status quo should be maintained pending trial

Court orders

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  1. 1.The Plaintiff's Notice of Motion application dated 10th March 2017 is dismissed entirely with costs being in the cause
  2. 2.Status quo to be maintained: the Defendant to remain in possession and occupation but restrained from selling, alienating, subdividing, disposing of, charging, constructing, digging foundation and/or any act interfering with preservation of the suit properties or tilting the status quo

Authorities

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Cases cited (8)

  • 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
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Ramji Jethabhai vs Mrs CE Fisher
    Civil Appeal No.5 of 1980
  • Urmilla W/O Mahendra Shah vs Barclays Bank International Ltd & Another
    (1979) KLR 76
  • Wairimu Mureithi vs City Council of Nairobi
    Civil Appeal No.5 of 1979 (1981) KLR 322
  • Virginia Edith Wambui vs Joash Ochieng Ougo
    Civil Appeal No.3 of 1987 (1987) eKLR
Jurisdiction invoked
Original civil jurisdiction over land disputes (Environment and Land Court)

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, "Nyambura Kamau v Teresia Wanjiku Wainaina [2017] KEELC 1085 (KLR)", Case Analysis (2017). Plaint dated 10th March 2017 (Notice of Motion dated 10th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1085/eng@2017-11-10

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