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ELCPartially AllowedELC No. 30 of 2017 (formerly Kerugoya ELC No. 44 of 2016)· [2017] KEELC 1680 (KLR)

Joseph Ndung’u Murunyu v George Ngugi Murunyu & 2 others [2017] KEELC 1680 (KLR)

Environment and Land Court
29 September 2017
871 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A registered Kenyan landowner won a permanent injunction stopping relatives from interfering with his land, but received no costs.

What this practically means

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Executive summary

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This was a claim for a permanent injunction heard by the Environment and Land Court at Thika by way of formal proof after the Defendants failed to enter appearance or file a defence despite service on 18th April 2016. The Plaintiff, Joseph Ndung'u Murunyu, sought to restrain the Defendants - his brother and sisters - from trespassing on, alienating, encroaching on or interfering with land parcel Ngenda/Kimunyu/1695, which he inherited from his late father Murunyu Gatonye. He testified that the Defendants occasionally trespassed and destroyed his crops, structures and other property. The Court held that the Plaintiff bore the burden of proving his case on a balance of probabilities, and that his uncontroverted evidence, supported by the title deed issued on 30th September 2015 and produced as exhibit 1, discharged that burden. Relying on Sections 24(a), 25(1) and 26(1) of the Land Registration Act, the Court found the Plaintiff to be the absolute and indefeasible proprietor whose right to quiet enjoyment had been breached. Judgment was entered for the Plaintiff against the Defendants jointly and severally in terms of prayer (a) of the Plaint, being a permanent injunction restraining the Defendants and their agents from dealing with, interfering with, alienating or encroaching on the suit property. Although costs were sought in the Plaint, the Court declined to award them, giving no orders as to costs. The judgment was delivered on 29th September 2017 by L. Gacheru J.

Key legal issues

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01

Whether the Plaintiff proved his claim of ownership and trespass to the standard of a balance of probabilities

Holding

Yes. The Plaintiff produced his title deed, establishing indefeasible ownership, and the Defendants, though served, did not appear to controvert the evidence of trespass and destruction of property.

Reasoning

The Court noted that a plaintiff bears the burden of proving his case on a balance of probabilities. The Plaintiff produced the title deed to Ngenda/Kimunyu/1695, issued on 30th September 2015, as exhibit 1. Under Sections 24, 25 and 26(1) of the Land Registration Act he is deemed absolute and indefeasible proprietor. The Defendants did not enter appearance or file a defence after service, so the evidence of trespass, destruction of crops and property and interference stood uncontroverted, entitling the Plaintiff to a permanent injunction.

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02

Protection of a registered proprietor's rights under the Land Registration Act

Holding

Registration vests absolute ownership and the rights of the proprietor are free from all other interests and claims except as provided in the Act.

Reasoning

The Court reproduced Section 24(a) of the Land Registration Act, which vests absolute ownership of land in the registered proprietor together with all rights and privileges appurtenant, and Section 25(1), which renders the proprietor's rights immune from defeat except as provided in the Act. Section 26(1) makes the Plaintiff the absolute and indefeasible proprietor. On this statutory footing the Defendants' interference amounted to a breach of the Plaintiff's right to quiet enjoyment, justifying a permanent injunction.

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Legal principles established

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  • A registered proprietor is deemed to be the absolute and indefeasible owner of the land under Section 26(1) of the Land Registration Act.
  • The rights of a proprietor of land cannot be defeated except as provided in the Land Registration Act (Sections 24 and 25).
  • Uncontroverted evidence, where the claim is proved to the required standard, supports the grant of a permanent injunction to protect a proprietor's right to quiet enjoyment.

Court orders

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  1. 1.Judgment entered for the Plaintiff against the Defendants jointly and severally as prayed in the Plaint in terms of prayer (a)
  2. 2.A permanent injunction restraining the Defendants, their agents and servants from dealing with, interfering with, alienating or encroaching on land parcel Ngenda/Kimunyu/1695
  3. 3.No orders as to costs

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26(1)

Cases cited (1)

  • Tanzania Saruji Corporation Vs Africa Marble Co. Ltd (2002) 2 EA 613 (CAT)
    (2002) 2 EA 613 (CAT)
Jurisdiction invoked
Article 162(2)(b) of the Constitution establishing the Environment and Land Court (implied by the Court's jurisdiction over the suit land); no express provision cited

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, "Joseph Ndung’u Murunyu v George Ngugi Murunyu & 2 others [2017] KEELC 1680 (KLR)", Case Analysis (2017). ELC No. 30 of 2017 (formerly Kerugoya ELC No. 44 of 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1680/eng@2017-09-29

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