Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 20th January, 2017)· [2017] KEELC 1441 (KLR)

Philip Wanjohi Kariuki v Kennedy Njenga Nyambura & 3 others [2017] KEELC 1441 (KLR)

Environment and Land Court
4 October 2017
COChristine Ochieng
1,917 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

#

What this practically means

#

Executive summary

#
This was a ruling on the Plaintiff's Notice of Motion dated 20th January 2017 seeking, among other things, orders of inhibition over land parcel Kajiado/Kaputiei-North/59924 pending the hearing of a suit arising from an agreement of 25th August 2015 under which the Plaintiff agreed to buy five acres from the 1st and 2nd Defendants for Kshs. 9,000,000, of which he claimed to have paid Kshs. 6,250,000. The Plaintiff alleged the completion date had long passed, that a restriction registered by the interested party Calarus Sankori Karino blocked completion, and that the Defendants were about to fraudulently dispose of the parcel. The 1st Defendant admitted receiving only Kshs. 2.7 million and attributed delay to the interested party's restriction, asserting willingness to complete once it was lifted; the 3rd Defendant, the advocate who acted for both sides, disputed the payment figures and also sought referral to arbitration. The interested party did not oppose the application. The court framed the sole issue as whether an inhibition should be registered pending suit. Applying the Mrao v First American Bank test, it found a prima facie case and irreparable harm, noting the deposit was undisputed and completion had not occurred within the agreed 180 days. Disputes over the exact sums paid were reserved for trial. Declining to grant the orders exactly as sought, the court invoked Section 68(1) of the Land Registration Act and ordered an inhibition registered by the Land Registrar Kajiado over the entire parcel against any dealings, lease or charge pending determination of the suit, with costs in the cause.

Key legal issues

#
01

Whether the Plaintiff established a prima facie case warranting interlocutory protection of his interest in the suit land

Holding

Yes - the Plaintiff entered into a Sale Agreement for five acres and paid a deposit, establishing a prima facie case and potential irreparable harm if orders were not granted

Reasoning

The court applied the Mrao test for prima facie case. It found the sale agreement dated 25th August 2015 and payment of a deposit were not disputed, and that with completion long past (beyond the agreed 180 days), the Plaintiff would suffer irreparably if the orders were not granted. Disputed issues on exact payments were left for trial.

p. 3
02

Whether an inhibition should be registered against the suit land pending trial

Holding

Yes, but in terms framed by the court under Section 68(1) of the Land Registration Act rather than as sought by the Plaintiff

Reasoning

The court found the Plaintiff's claim was not refuted while the interested party claimed unpaid purchase price, with the sanctity of title in dispute and the Plaintiff an innocent purchaser. These were triable issues best determined at full trial; the court nonetheless inhibited all dealings with the whole parcel until determination of the suit.

p. 3

Legal principles established

#
  • A prima facie case in a civil application is a case which, on the material presented, shows an apparently infringed right calling for an explanation from the opposite party
  • The court may inhibit registration of dealings with land pending further order under Section 68(1) of the Land Registration Act

Court orders

#
  1. 1.An inhibition order be and is hereby registered by the Land Registrar Kajiado as against land parcel number Kajiado/Kaputiei - North/59924 against any dealings, lease or charge pending the hearing and determination of the suit
  2. 2.Costs in the cause

Authorities

#

Legislation

  • Civil Procedure ActSections 3, 3A and 63(c) & (e)
  • Civil Procedure RulesOrder 36 Rule 1; Order 40 rules 1, 2 & 8; Order 51 rules 1 & 3
  • Land Registration ActSection 68(1)

Cases cited (1)

  • MRAO Vs. FIRST AMERICAN BANK OF KENYA LTD & TWO OTHERS
    CA No. 39 of 2002
Jurisdiction invoked
Sections 3, 3A and 63(c) & (e) of the Civil Procedure Act; Order 36 Rule 1, Order 40 rules 1, 2 & 8 and Order 51 rule 1 & 3 of the Civil Procedure Rules; Section 68(1) of the Land Registration Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Philip Wanjohi Kariuki v Kennedy Njenga Nyambura & 3 others [2017] KEELC 1441 (KLR)", Case Analysis (2017). Not stated in the judgment (Notice of Motion dated 20th January, 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1441/eng@2017-10-04

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