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ELCAllowedNot stated in the extract provided· [2017] KEELC 1269 (KLR)

Samuel Njaramba Wagitu & aother v Michael Ngila Mwania & 4 others [2017] KEELC 1269 (KLR)

Environment and Land Court
2 November 2017
1,423 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Machakos froze six land parcels, holding buyers who could not produce sale agreements or proof of payment had no proof of ownership.

What this practically means

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Executive summary

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This is a ruling by O.A. Angote J of the Environment and Land Court at Machakos, delivered on 2nd November 2017, on the Plaintiffs' application dated 12th October 2016 seeking an interlocutory injunction restraining the Defendants from trespassing on, sub-dividing, transferring, occupying or alienating six parcels of land known as Donyo Sabuk/Komarock Block 1/20559, 20564, 20565, 20561, 22515 and 22516, pending the hearing and determination of the suit. The Plaintiffs' case was that the 1st Plaintiff purchased three parcels from the late Mauye Musau for Kshs. 3,600,000 under an agreement executed in December 2008, but only obtained a title for plot 20559; other portions were instead transferred to the 2nd, 3rd and 4th Defendants, allegedly through the fraud of the 1st Defendant, a surveyor. The 1st Defendant denied surveying or transferring the plots and claimed he bought the land from one Benson Musyoki, while the 4th Defendant asserted he purchased plot 22515 from the deceased. The court found it not in dispute that the deceased owned the mother parcel which was sub-divided into seven portions. It held that the Plaintiffs, having produced a sale agreement for plots 20564 and 20565 which had since been sub-divided, and the Defendants having produced no affidavit from Musyoki linking his purported purchase to the Plaintiffs' land, had established a prima facie case with chances of success. It also held that the 4th Defendant's claim of purchase was unsupported by any evidence of the agreement or payment. The court allowed the application as prayed and granted the injunction sought, with costs of the application provided for.

Key legal issues

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01

Whether the Plaintiffs established a prima facie case for an interlocutory injunction

Holding

Yes. The 1st Plaintiff produced a Sale Agreement showing purchase of plots 20564 and 20565, and the Defendants produced no affidavit from Mr. Musyoki showing the land he purportedly bought was the same as that purchased by the Plaintiffs.

Reasoning

The court found it not in dispute that the late Mauye Musau owned the mother parcel Donyo Sabuk/Komarock Block 1/983 which was sub-divided into seven portions. The 1st Plaintiff exhibited a sale agreement for portions 20559, 20564 and 20565 for Kshs. 3,600,000, yet only obtained a title for 20559. The validity of the alleged title chain from Benson Musyoki to the 1st Defendant and onward to the 3rd and 4th Defendants could only be ascertained at trial, supporting a prima facie case warranting preservation of the status quo.

p. 4
02

Whether the 4th Defendant demonstrated a competing interest in plot 22515

Holding

No. He claimed to have purchased from the deceased by agreement dated 26th March 2009 and paid Kshs. 850,000 through his advocate, but exhibited neither the agreement nor evidence of payment.

Reasoning

Although the 4th Defendant deponed that he is the registered proprietor of parcel 22515 and purchased it from the deceased, the alleged agreement was not exhibited and no evidence of the mode of payment of Kshs. 850,000 was offered. The court therefore treated his claim of purchase as unsupported, weakening any objection to the injunction.

p. 3

Legal principles established

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  • A prima facie case with chances of success may be established at the interlocutory stage where a party produces a sale agreement showing purchase of specific parcels, and the opposing party fails to produce evidence (such as an affidavit from the alleged intermediate vendor) supporting its competing claim.
  • A party asserting a purchase from a deceased vendor must exhibit the sale agreement and evidence of payment; an unsupported assertion does not establish title.

Court orders

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  1. 1.The Plaintiffs' Application dated 12th October, 2016 allowed as prayed
  2. 2.An order of injunction restraining the Defendants/Respondents, their agents, servants and/or employees from trespassing on, further sub-dividing, transferring, occupying and/or alienating L.R. Nos. Donyo Sabuk/Komarock Block 1/20559, 20564, 20565, 20561, 22515 and 22516 pending the hearing and determination of the suit
  3. 3.Costs of the application provided for (to the Plaintiffs, as the application was allowed as prayed)
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant interim injunctions pending hearing and determination of the suit

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, "Samuel Njaramba Wagitu & aother v Michael Ngila Mwania & 4 others [2017] KEELC 1269 (KLR)", Case Analysis (2017). Not stated in the extract provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1269/eng@2017-11-02

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