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ELCAllowedNot stated in the judgment (appeal from Co-operative Tribunal Case No. 10 of 2011)· [2017] KEELC 1086 (KLR)

Inoi Farmers Co-operative Society Ltd v Kaitheri Housing Co-operative Society Ltd [2017] KEELC 1086 (KLR)

High Court of Kenya
6 October 2017
2,091 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court froze the sale or transfer of disputed Kerugoya land until a co-operative society's appeal is fully heard and decided.

What this practically means

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Executive summary

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The Appellant, Kaitheri Housing Co-operative Society Limited, moved the High Court at Kerugoya by Notice of Motion dated 1st December 2016 seeking a temporary injunction pending appeal restraining the Respondent from selling, transferring, disposing, alienating, leasing, charging or sub-dividing various Inoi/Kerugoya land parcels. The appeal was against a decision of the Co-operative Tribunal Nairobi in Tribunal Case No. 10 of 2011 delivered on 18th October 2016, which dismissed the Appellant's counter-claim concerning land parcels it said were transferred to the Respondent without its knowledge, without Land Control Board consent and without approval by a General Meeting. The Respondent opposed, asserting that some parcels belonged to Kaitheri Housing Investment Company Ltd, that it had secured a bank loan over parcels 688 and 689 and leased parcel 252, and that transfer occurred over 30 years ago. The Appellant produced a letter from the District Land Registrar, Kirinyaga, confirming that registration of the resultant parcels in the name of Kaitheri Investment Company Limited was a mistake since rectified. Justice B.N. Olao, applying Order 42 Rule 6(6) of the Civil Procedure Rules and the Patricia Njeri and Giella principles, found the appeal properly filed under Section 79G, not frivolous, raising arguable issues of fraud and want of consent. The court held the balance of convenience favoured preservation of the properties and granted the injunction limited to alienation, preserving existing leases and charges, with costs in the appeal, and directed expeditious calling of the record.

Key legal issues

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01

Injunction pending appeal under Order 42 Rule 6(6)

Holding

The application was allowed as the appeal was not frivolous and the balance of convenience favoured preservation of the suit properties pending appeal.

Reasoning

The court applied the Patricia Njeri and Giella principles. Since an appeal was properly filed within 30 days under Section 79G, the court considered whether the appeal was frivolous, the hardship to the Respondent, and whether refusal would render the appeal nugatory. The appeal raised arguable issues including fraud and lack of Land Control Board consent. The Respondent remains in possession; the injunction only restrains alienation, so hardship is minimal.

p. 4
02

Indefeasibility of title under Section 26 of the Land Registration Act

Holding

The Respondent as registered owner enjoys prima facie indefeasible ownership, but such registration may be challenged for fraud or illegal/unprocedural acquisition.

Reasoning

The Land Registrar confirmed that registration of the parcels in the name of Kaitheri Housing Investment Company was an error, since rectified, with titles recalled for re-issue in the Respondent's name. The court noted the statutory protection of registered proprietors while acknowledging the statutory exceptions for fraud and corrupt schemes, relevant to the pending appeal.

p. 3

Legal principles established

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  • Where a party is exercising an undoubted right of appeal, the Court should ensure the appeal is not rendered nugatory by preserving the status quo, particularly where the appeal involves property whose ownership may be difficult to reverse.
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to challenge on grounds of fraud, misrepresentation, illegality, un-procedural acquisition or corrupt scheme.

Court orders

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  1. 1.Temporary injunction restraining the Respondent, its servants and/or agents from selling, leasing, transferring, disposing, alienating, charging or sub-dividing land parcels No. INOI/KERUGOYA/3095-3160 and INOI/KERUGOYA/688 and 698 pending the hearing and determination of the appeal
  2. 2.The order does not affect any leases/charges that the Respondent may have already entered into with respect to the suit properties
  3. 3.Costs shall be in the appeal
  4. 4.The Deputy Registrar to call for the record so that the appeal is expedited
On appeal from
Co-operative Tribunal Nairobi
Tribunal Case No. 10 of 2011
Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules; Section 79G of the Civil Procedure Act (appellate jurisdiction over subordinate tribunals)

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, "Inoi Farmers Co-operative Society Ltd v Kaitheri Housing Co-operative Society Ltd [2017] KEELC 1086 (KLR)", Case Analysis (2017). Not stated in the judgment (appeal from Co-operative Tribunal Case No. 10 of 2011). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1086/eng@2017-10-06

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