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ELCAllowedNot stated in the judgment· [2017] KEELC 1498 (KLR)

Tom L. Wanambisi v Dickson W. Babandege & 2 others [2017] KEELC 1498 (KLR)

Environment and Land Court
3 October 2017
688 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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In a Kenyan land dispute, the registered title holder keeps possession until trial proves fraud.

What this practically means

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Executive summary

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This was an interlocutory application by the 1st defendant (applicant) under Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules 2010, seeking restraining orders against the plaintiff (respondent) from entering, occupying, trespassing on or interfering with parcel Ndivisi/Makuselwa/89 pending the hearing and determination of the suit. The applicant bought the land at a public auction on 16/4/2010 and obtained title on 11th January 2011 after a foreclosure by the Agricultural Finance Corporation; he annexed the certificate of search, auction advertisement, foreclosure and sale notices, notice to redeem, memorandum of sale and title deed. He deponed that the plaintiff, owner of the adjoining parcel Ndivisi/Makuselwa/90, kept re-entering the land and interfering with his use. The respondent did not dispute the applicant's registration but alleged it was fraudulent, contending no auction took place at Kitale, and claims damages of Kshs. 5,203,550. The court relied on Section 26 of the Land Registration Act on indefeasibility of title, noted an earlier ruling by Justice A. Omollo dismissing the plaintiff's own injunction application, which was not appealed, and held that pending trial the applicant is the owner and is in occupation. The balance of convenience favoured the applicant, who remained on the land, while the respondent retained his adjoining 11.25 acres. The application was allowed with costs to abide the outcome of the case.

Key legal issues

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01

Entitlement to a restraining order pending determination of the suit

Holding

The application was allowed because the applicant holds the title to Ndivisi/Makuselwa/89, has been in occupation, and an earlier injunction application by the plaintiff was dismissed and not appealed.

Reasoning

The applicant purchased the land at a public auction on 16/4/2010 and was transferred the land on 11th January 2011, producing the search, auction advertisement, notices, memorandum of sale and title deed. Under Section 26 of the Land Registration Act his title is prima facie indefeasible. The plaintiff alleges fraud but the claim remains unproven until trial; an earlier application by the plaintiff for an injunction was dismissed by Justice A. Omollo and not appealed. The balance of convenience favours the applicant, who has been in occupation, and the respondent retains his adjoining 11.25 acres.

p. 2
02

Balance of convenience

Holding

The balance of convenience favours the applicant because he is the person on the land and the respondent will not be evicted from his own adjoining parcel.

Reasoning

The court found the applicant has been on the land, the respondent owns an adjoining parcel of 11.25 acres, and the order does not evict the respondent. The parties were advised to fast track the suit so the pending issues, including the plaintiff's allegation of a fraudulent registration, can be determined at trial.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud/misrepresentation to which the proprietor is party, or where acquired illegally, unprocedurally or through a corrupt scheme.
  • Until a suit is determined on its merits, the registered owner is treated as owner, and interim restraining orders protect the registered owner in possession.

Court orders

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  1. 1.The application is allowed
  2. 2.Costs shall abide with the outcome of the case
Jurisdiction invoked
Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules 2010 (interim injunction in pending 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, "Tom L. Wanambisi v Dickson W. Babandege & 2 others [2017] KEELC 1498 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1498/eng@2017-10-03

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