Tom L. Wanambisi v Dickson W. Babandege & 2 others [2017] KEELC 1498 (KLR)
The bottom line
#In a Kenyan land dispute, the registered title holder keeps possession until trial proves fraud.
What this practically means
#Executive summary
#Key legal issues
#Entitlement to a restraining order pending determination of the suit
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.
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.
Balance of convenience
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.
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.
Legal principles established
#- 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
#- 1.The application is allowed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.