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ELCAllowedNakuru ELC (number not stated in the ruling)· [2017] KEELC 2471 (KLR)

Francis Njuguna And 19 others v Joyce Nyambura Murigi [2017] KEELC 2471 (KLR)

Environment and Land Court
14 June 2017
MSMunyao Sila
1,862 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nakuru court blocked a woman who obtained a new title over already-subdivided land, ruling her conduct an abuse of court process.

What this practically means

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Executive summary

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The plaintiffs, registered proprietors of parcels Nakuru Municipality Block 17/653 to 679 excised from the parent title Nakuru Municipality Block 17/631, which they purchased from Francis Gachanja between 2006 and 2015, sued the defendant for a declaration of lawful proprietorship, a permanent injunction, and an order restraining the Land Registrar from registering any interest in her favour. Together with the plaint they sought an interlocutory injunction restraining her from the suit properties pending trial. The defendant opposed, claiming the parent parcel belonged to her late father, Jese Kariuki, who died on 5 July 1998, and that she later obtained a Lease Certificate; she counterclaimed for declarations that the plaintiffs' registrations were fraudulent and void, eviction, and a permanent injunction. The plaintiffs attacked her letter of allotment dated 30 March 2000 as a nullity since the alleged allottee was deceased, arguing no contract could be made with a dead man. Applying the Giella vs Cassman Brown principles, Munyao Sila J found the plaintiffs held title deeds and had taken possession and developed some parcels. The court noted the defendant had previously litigated against Gachanja and lost her injunction application in Nakuru HCCC No. 258 of 2005, which she failed to pursue to decree, and that her 2015 title was issued despite a 2011 order of prohibition and after the parent parcel had been subdivided. This was found to be an abuse of process. The plaintiffs demonstrated a prima facie case with a probability of success, and the application was allowed: the defendant was restrained from the suit parcels until determination of the suit, with costs to the applicants.

Key legal issues

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01

Prima facie case

Holding

The plaintiffs, holding title deeds to parcels subdivided from the parent title, established a prima facie case with a probability of success.

Reasoning

The plaintiffs produced title deeds to the suit properties which emanated from subdivision of the parent parcel. The defendant's claim rested on a title to the parent parcel issued in 2015 despite a subsisting order of prohibition and after the parcel had ceased to exist upon subdivision. The defendant had earlier litigated against Francis Gachanja and lost her injunction application in Nakuru HCCC No. 258 of 2005. Denying the plaintiffs an injunction would hand the defendant what the court had already declined to give her.

p. 3
02

Abuse of process by the defendant

Holding

The defendant's procurement of a title over land subject to pending and prior litigation, without a decree in her favour, was an abuse of process and undermined her claim.

Reasoning

The defendant had sought declarations of ownership in Nakuru HCCC No. 258 of 2005 but did not pursue the suit to decree, offering an explanation about a missing court file that the court rejected. Her title to the parent parcel was issued in September 2015 despite orders of prohibition issued by Emukule J in 2011 and despite the parent parcel having been subdivided. The court found her conduct circumvented court process and weighed heavily against her claim of entitlement.

p. 3

Legal principles established

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  • The principles for granting an interlocutory injunction are those in Giella vs Cassman Brown: prima facie case with probability of success, irreparable loss, and balance of convenience if in doubt.
  • A party who has litigated and lost a claim to land cannot circumvent court process by procuring title to the disputed land without a decree in her favour; such conduct amounts to abuse of process.

Court orders

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  1. 1.Orders restraining the defendant/respondent from the land parcels Nakuru Municipality/Block 17/653 to 679 (both inclusive) until the suit is heard and determined
  2. 2.Costs of the application awarded to the applicants

Authorities

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Cases cited (1)

  • Giella vs Cassman Brown
    (1973) EA 358
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over land parcel ownership and interference with registered land

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, "Francis Njuguna And 19 others v Joyce Nyambura Murigi [2017] KEELC 2471 (KLR)", Case Analysis (2017). Nakuru ELC (number not stated in the ruling). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2471/eng@2017-06-14

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