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ELCPartially AllowedNotice of Motion dated 5th December, 2016 (suit over land parcel KAJIADO/KITENGELA/5477)· [2017] KEELC 1824 (KLR)

Julius Materian Kisoso v Wish Life Investment Limited & another [2017] KEELC 1824 (KLR)

Environment and Land Court
21 September 2017
COChristine Ochieng
1,415 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When two people hold titles to the same Kenyan land, the court may freeze all dealings rather than hand victory to either side.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of land parcel KAJIADO/KITENGELA/5477 (a 1994 subdivision of parcel KAJIADO/KITENGELA/4076), moved the court by Notice of Motion dated 5th December 2016 under Order 40 of the Civil Procedure Rules seeking an interlocutory injunction. He deposed that he lost his title in 2015, followed the prescribed procedure of police report, advertisement and gazettement, and obtained a replacement title in January 2016 - only for the 2nd Defendant to assert that the land belonged to the 1st Defendant, whose title bears the same registration date of 8th July 1994, and to threaten cancellation of the Plaintiff's title. Interested parties, administrators of the estate of a former director and majority shareholder of the 1st Defendant, opposed, asserting the company purchased and was registered as owner of the land in 1994. Applying the Giella v Cassman Brown principles, the court found the Plaintiff had established a prima facie case, though it found it intriguing how both parties came to be registered on the same day; it also relied on UCB v Mukoome Agencies that allegations of fraud raise triable issues requiring an opportunity to prove them. Finding the title might be wasted if not preserved, the court issued an inhibition order against the suit parcel restraining all dealings pending determination of the suit, rather than the injunction sought, with costs in the cause. Judgment delivered at Kajiado on 21st September 2017 by Christine Ochieng, J.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

Yes - the Plaintiff's claim was not baseless, though the duplication of registration on the same day required trial

Reasoning

The court applied Giella v Cassman Brown. The Plaintiff produced documents showing he was registered as proprietor following subdivision of parcel 4076, and the interested parties produced documents supporting the 1st Defendant's 1994 registration. The court found the Plaintiff's claim not baseless but noted the intrigue of both parties being registered on the same day, requiring full trial.

p. 2
02

Whether the Plaintiff would suffer irreparable loss not compensable in damages

Holding

The court found preservation of the title necessary as it might otherwise be wasted

Reasoning

Both parties alleged fraud and staked ownership; the title's sanctity was in question. Rather than an injunction, the court fashioned an inhibition order to preserve the property pending trial, treating the preservation of the disputed title as the appropriate protective remedy.

p. 3

Legal principles established

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  • Where fraud is alleged, the party alleging it must be given an opportunity to prove it, and a substantial allegation of fraud raises a triable issue

Court orders

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  1. 1.An inhibition order registered by the Land Registrar Kajiado against land parcel number KAJIADO/KITENGELA/5477 measuring approximately 10.12 hectares, restraining any dealings including disposing of, transferring, leasing or charging pending the hearing and determination of the suit
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(a), 2 & 4
  • Civil Procedure ActSections 1A, 1B and 3A

Cases cited (2)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) E.A 358
  • UCB Vs Mukoome Agencies
    (1982) HCB22
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rules 1(a), 2 & 4 of the Civil Procedure Rules

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, "Julius Materian Kisoso v Wish Life Investment Limited & another [2017] KEELC 1824 (KLR)", Case Analysis (2017). Notice of Motion dated 5th December, 2016 (suit over land parcel KAJIADO/KITENGELA/5477). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/1824/eng@2017-09-21

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