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ELCAllowedNotice of Motion dated 31st January 2017 (suit property: Title No. NANDI/CHEMELIL SETTLEMENT SCHEME/607)· [2017] KEELC 1123 (KLR)

Monica Jepwambok Rono v Martin Douglas Kipkosgei & 5 others [2017] KEELC 1123 (KLR)

Environment and Land Court
5 October 2017
2,018 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court blocked defendants from dealing with disputed Nandi land, ruling that a registered title is not protected if fraud is alleged.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (M.A Odeny, J) on a Notice of Motion dated 31st January 2017 by the plaintiff seeking temporary injunctions restraining the defendants from taking possession of, selling, alienating or dealing with title No. NANDI/CHEMELIL SETTLEMENT SCHEME/607 pending hearing of the suit. The plaintiff claimed she was allocated the suit property, had occupied it for about twenty years with substantial developments including a residential house and mature sugar cane, and alleged the 1st defendant's title was procured by fraud or misrepresentation and acquired illegally, unprocedurally or through a corrupt scheme. She relied on Giella v Cassman Brown, Mrao v First American Bank and Aikman v Muchoki. The 1st defendant, relying on Machira v East African Standard and on indefeasibility under the Land Registration Act and Article 40 of the Constitution, contended both parties were allottees issued titles on first registration and that the plaintiff had no prima facie case. The 2nd to 6th defendants did not oppose the application. The court found the plaintiff had annexed a title deed, a Registry Index Map, photographs, and evidence of occupation including a prior eviction order against the 1st defendant. It held that Sections 24, 25 and 26 of the Land Registration Act permit cancellation of titles obtained through fraud, and that the 1st defendant offered no documentation to rebut the fraud allegation. The court found a prima facie case with probability of success, irreparable injury, and granted the temporary injunction, allowing the application with costs to the plaintiff, with Order 11 compliance within 30 days.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

The court found the plaintiff established a prima facie case: she held a title deed, was in occupation and possession, had obtained a prior eviction order, and the 1st defendant offered no documentation to rebut the pleaded fraud

Reasoning

The court applied the Giella principles. The plaintiff annexed a title deed, a Registry Index Map, photographs of a residential house and mature sugar cane, and was in occupation. The 1st defendant relied only on indefeasibility of title and Article 40 of the Constitution without attaching documentation responding to the fraud allegation. Article 40 itself excludes unlawfully acquired property from protection, which the court noted supports the plaintiff's position pending full hearing.

p. 4
02

Whether irreparable harm would be suffered absent an injunction

Holding

The plaintiff, being in occupation, would suffer irreparable injury if the orders were not granted

Reasoning

The plaintiff had been in possession for about twenty years and had made substantial developments including a residential house and mature sugar cane. Counsel relied on Aikman v Muchoki to argue that where a plaintiff has a strong case, adequacy of damages does not arise. The court accepted that the plaintiff being in occupation would suffer irreparable injury and that the interest of justice required preservation of the status quo pending clarification of the fraud allegation at full trial.

p. 4
03

Effect of Section 26(1) of the Land Registration Act on indefeasibility of title

Holding

Indefeasibility under Sections 24, 25 and 26 of the Land Registration Act does not protect a title procured by fraud or misrepresentation or acquired illegally, unprocedurally or through a corrupt scheme

Reasoning

The court held that while Sections 24, 25 and 26 of the Land Registration Act 2012 establish indefeasibility, they equally permit cancellation where a title is alleged to have been issued by way of fraud or misrepresentation. Since the plaintiff pleaded fraud and the 1st defendant attached no documentation explaining the allegation, the 1st defendant's mere assertion of registered ownership was insufficient to defeat the application.

p. 4

Legal principles established

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  • Principles for grant of temporary injunction: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership but is subject to challenge on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition

Court orders

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  1. 1.The application dated 31st January 2017 is allowed
  2. 2.A temporary injunction restraining the defendants, their servants, agents or any person acting on their instructions from taking possession, selling, disposing, alienating, charging, advertising for sale or in any manner dealing with title No. NANDI/CHEMELIL SETTLEMENT SCHEME/607 pending the hearing and determination of the suit
  3. 3.Costs of the application awarded to the plaintiff
  4. 4.Parties to comply with Order 11 within 30 days

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Registration of Land Act 2012Sections 24, 25 and 26
  • Registered Land Act (Now repealed)
  • Constitution of KenyaArticle 40 (including Article 40(6))
  • Civil Procedure Rules (Order 11)Order 11

Cases cited (4)

  • GIELLA vs CASSMAN BROWN
    (1973) EA 358
  • MRAO versus FIRST AMERICAN BANK OF KENYA LIMITED & 2 OTHERS
    (2003) KLR 125
  • Aikman vs. Muchoki
    (1984) KLR 353
  • Machira & Co. Advocates vs East African Standard (No. 2)
    (2002) KLR 63
Jurisdiction invoked
Inherent jurisdiction to grant temporary injunctions under the Civil Procedure Act/Order 39 and the Land Registration Act framework (not expressly cited); matter heard at Eldoret as an original land dispute

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, "Monica Jepwambok Rono v Martin Douglas Kipkosgei & 5 others [2017] KEELC 1123 (KLR)", Case Analysis (2017). Notice of Motion dated 31st January 2017 (suit property: Title No. NANDI/CHEMELIL SETTLEMENT SCHEME/607). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1123/eng@2017-10-05

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