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ELCDismissedNot stated in the judgment (Notice of Motion dated 10th March 2017)· [2017] KEELC 1130 (KLR)

Jacinta Njeri Wanyoike v Teresia Wanjiku Wainaina [2017] KEELC 1130 (KLR)

Environment and Land Court
10 November 2017
LGL. Gacheru
2,289 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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A Kenyan land buyer who couldn't prove her title was genuine lost her bid to evict the person already on the land, who stays put until trial.

What this practically means

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Executive summary

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The Plaintiff, Jacinta Njeri Wanyoike, moved the Environment and Land Court at Thika by Notice of Motion dated 10th March 2017 seeking a temporary injunction to restrain the Defendant, Teresia Wanjiku Wainaina, from occupying, entering, constructing on, transferring, selling or otherwise interfering with parcels Ruiru/Ruiru East Block 2/5001 and 5004, plus an order to the OCS Ruiru Police Station and costs. The Plaintiff claimed to have bought shares in Nyakinyua Investment Ltd in 1976, been balloted and registered as proprietor in the early 1990s, and to have been in quiet possession until the Defendant began trespassing, depositing containers and digging foundations from late 2016. The Defendant swore she had been the registered owner and in continuous possession since 1988, holding share certificates from 1985 and 1987, fencing the land and growing hay grass, with containers on site for over two years. The Plaintiff filed a further affidavit alleging the Defendant fraudulently obtained her documents and that her titles were nullified. Applying the Giella v Cassman Brown criteria, the court held there were two competing sets of title deeds whose genuineness could not be resolved on affidavit evidence; the Plaintiff thus had no prima facie case with probability of success. Fraud allegations required strict proof beyond a mere balance of probabilities. The court found it more probable the Defendant was in possession and that damages would adequately compensate the Plaintiff, but on the balance of convenience ordered maintenance of the status quo: the Defendant to remain in possession but restrained from selling, disposing of, subdividing, charging, alienating, constructing or otherwise interfering with the suit properties. The application was disallowed entirely with costs in the cause.

Key legal issues

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01

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

Holding

She did not; the existence of two competing sets of title deeds and disputed facts could not be resolved on affidavit evidence

Reasoning

Both parties claim to be bona fide registered owners of the two parcels with competing title deeds. Whether one set was issued unlawfully or through mistake requires evidence from Nyakinyua Investment Ltd officials and the Lands office, tested through cross-examination. The alleged police report finding the Defendant's titles not genuine was not attached, and the authenticity of the Nyakinyua confirmation letter was challenged. Fraud allegations require strict proof and cannot be ascertained on affidavits.

p. 4
02

Whether the Plaintiff would suffer irreparable loss not compensable by damages

Holding

She would not; damages would be an adequate remedy

Reasoning

The Defendant claimed possession since 1988, growing hay grass, and placing containers for commercial purposes over two years prior. The photographs showed the containers were not recently placed, making it more probable the Defendant has been in possession. Any loss the Plaintiff might suffer if the suit succeeded in her favour would be compensable by an award of damages.

p. 4
03

Where the balance of convenience lies

Holding

In favour of maintaining the status quo, with the Defendant remaining in possession but restrained from defeating preservation of the suit property

Reasoning

The status quo is that the Defendant is in possession with metal containers on the parcels. The purpose of preserving the status quo is to preserve the suit property and protect the parties' rights pending determination. The Defendant should therefore remain in possession but be restrained from selling, disposing of, subdividing, charging, alienating, constructing or otherwise interfering with the suit properties.

p. 4

Legal principles established

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  • A parcel of land cannot have separate titles held by different persons; where two competing titles exist, one must have been issued unlawfully or through mistake
  • Allegations of fraud must be strictly proved to a standard higher than a mere balance of probabilities and cannot be determined on affidavit evidence at an interlocutory stage
  • An interlocutory court should not delve into substantive issues or make finally concluded views of the dispute before hearing oral evidence
  • No injunction should normally be granted where damages recoverable at common law would be an adequate remedy and the defendant can pay them

Court orders

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  1. 1.The Notice of Motion dated 10th March 2017 is disallowed entirely with costs being in the cause
  2. 2.The suit properties No.Ruiru/Ruiru East Block 2/5001 and 5004 to be preserved by maintaining the status quo, with the Defendant remaining in possession but restrained from selling, disposing of, subdividing, charging, alienating, constructing or otherwise interfering with preservation of the suit properties

Authorities

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Cases cited (6)

  • Giella Vs Cassman Brown & Company Ltd
    1973 E.A 358
  • Agip (K) Ltd Vs Maheshchandra Himatlal Vora & Others
    Civil Appeal No.213 of 1999
  • Mrao Ltd Vs First American Bank
  • Ratlal Gordhanbhai Patel Vs Lalji Makonji
    Civil App.No.70 of 1956
  • Wairimu Mureithi Vs City Council of Nairobi
    Civil Appeal No.5 of 1979 (1981) KLR 322
  • Exclusive Estates Ltd Vs Kenya Posts and Telecommunications Corporation & Ano.
    Civil Appl. No.62 of 2004
Jurisdiction invoked
Original civil jurisdiction over land disputes (Environment and Land Court); no specific constitutional/statutory provision invoked in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Jacinta Njeri Wanyoike v Teresia Wanjiku Wainaina [2017] KEELC 1130 (KLR)", Case Analysis (2017). Not stated in the judgment (Notice of Motion dated 10th March 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1130/eng@2017-11-10

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