Monica Jepwambok Rono v Martin Douglas Kipkosgei & 5 others [2017] KEELC 1123 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the plaintiff established a prima facie case with a probability of success
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
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.
Whether irreparable harm would be suffered absent an injunction
The plaintiff, being in occupation, would suffer irreparable injury if the orders were not granted
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.
Effect of Section 26(1) of the Land Registration Act on indefeasibility of title
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
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.
Legal principles established
#- 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
#- 1.The application dated 31st January 2017 is allowed
- 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.Costs of the application awarded to the plaintiff
- 4.Parties to comply with Order 11 within 30 days
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.