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ELCAllowedApplication dated 23/1/2017 in the suit concerning Land Parcels Waitaluk/Mabonde Block 7/Koiyo/71, 72 and 148· [2017] KEELC 2513 (KLR)

Jane Tabsubei Creider v Samuel Kipchumba Arap Kogo & another [2017] KEELC 2513 (KLR)

Environment and Land Court (as inferable from land dispute; the judgment itself does not state the court)
30 May 2017
MNMwangi Njoroge
1,802 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kitale court stopped the defendant from cutting trees or occupying land owned by a plaintiff whose title documents proved her ownership.

What this practically means

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Executive summary

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By an application dated 23 January 2017 the plaintiff, the registered owner of three land parcels in Waitaluk, Trans-Nzoia County (Waitaluk/Mabonde Block 7/Koiyo/71, 72 and 148), sought a temporary injunction restraining the defendants from cutting trees, interfering with her quiet possession or dealing with the properties pending hearing of the application and the suit. She alleged that the 1st defendant, formerly her farm manager's replacement, had lived on the land since 1981, and that on 21 April 2016 the 2nd defendant and others, with a Chief's permit obtained by the 1st defendant, cut down 28 trees and threatened her with violence. The 1st defendant opposed the application, asserting he had occupied Parcel 72 for 37 years, sired seven children and buried two there, and claimed outstanding salary. He also filed a counterclaim seeking a declaration that Parcel 72 belongs to him. The court held that the defendants did not dispute the plaintiff's title; the exhibited certificates of title were prima facie evidence of absolute and indefeasible ownership under sections 24 and 25 of the Land Registration Act. The 1st defendant's claim for unpaid wages could not defeat the plaintiff's rights. Applying the Giella v Cassman Brown test, the court found a prima facie case with a probability of success and irreparable damage, and held it unnecessary to consider the balance of convenience. It issued a temporary injunction pending the hearing and determination of the suit, directed the OCS Kitale Police Station to ensure compliance, and awarded the plaintiff the costs of the application.

Key legal issues

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01

Prima facie case

Holding

The plaintiff has a prima facie case with a probability of success

Reasoning

The defendants did not dispute the plaintiff's registration as proprietor of the three parcels. The certificates of title exhibited established prima facie absolute and indefeasible ownership. The 1st defendant's claim for unpaid wages over 36 years could not defeat the registered title; indeed the material filed by the defendants reinforced the plaintiff's claim.

p. 3
02

Irreparable damage

Holding

The plaintiff demonstrated she would suffer irreparable damage if the orders were not granted

Reasoning

The court accepted the plaintiff's apprehension that more trees would be cut and her house risked destruction. Trees take many years to replace and the aesthetics of her retirement home would be gravely affected; destruction of the house would leave her without residence and put her to considerable inconvenience.

p. 3
03

Third Giella limb

Holding

It was unnecessary to consider the balance of convenience

Reasoning

Having found the first two limbs of the Giella v Cassman Brown test proved, the court held it was not necessary to go into the third limb concerning the balance of convenience.

p. 3

Legal principles established

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  • Registration of a person as proprietor of land vests absolute ownership in that person
  • Certificates of title are prima facie evidence of absolute and indefeasible ownership

Court orders

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  1. 1.Temporary injunction restraining the defendants or their agents from cutting trees, interfering with the plaintiff's quiet possession of the suit premises or dealing in any way with the suit properties pending hearing and determination of the suit
  2. 2.The Officer Commanding Kitale Police Station to ensure compliance with the orders
  3. 3.Costs of the application to the defendants

Authorities

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Legislation

  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25(1) and (2)
  • Land Registration ActSection 28

Cases cited (1)

  • Giella –vs- Cassman Brown
Jurisdiction invoked
Interlocutory application for temporary injunction in a land dispute; the judgment does not invoke a specific constitutional provision

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, "Jane Tabsubei Creider v Samuel Kipchumba Arap Kogo & another [2017] KEELC 2513 (KLR)", Case Analysis (2017). Application dated 23/1/2017 in the suit concerning Land Parcels Waitaluk/Mabonde Block 7/Koiyo/71, 72 and 148. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2513/eng@2017-05-30

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