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ELCAllowedELC Case of 2017 (formerly Kerugoya High Court Civil Suit No. 31 of 2017, Nyeri)· [2017] KEELC 2526 (KLR)

Hannah Wangui Mathenge & 2 others v Rose Muthoni Mathenge [2017] KEELC 2526 (KLR)

Environment and Land Court
19 May 2017
1,676 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 Kenyan court froze all dealings on family land claimed under a trust, keeping the family living there until the dispute is fully tried.

What this practically means

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Executive summary

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The plaintiffs, the widow and family members of the late Gerishon Mathenge, sued the defendant, his daughter and registered proprietor of land parcel No. MUTIRA/KAGUYU/1142, claiming she holds it in trust for the family and seeking termination of the trust and sub-division into four portions. Together with the plaint they sought inhibition and temporary injunction orders under Section 68 of the Land Registration Act and Order 40 Rules 1 and 4 of the Civil Procedure Rules. The defendant opposed, asserting sole ownership, that she purchased or was gifted the land to compensate money she repaid on a bank loan secured on the original parcel MUTIRA/KAGUYU/96, and that the 1st plaintiff, being sick with memory lapse, could not have instituted the suit. Olao J held that whether the land is held in trust or is the defendant's private property is a matter for trial, and that the defendant had not rebutted that the 1st and 2nd plaintiffs reside on the land. On inhibition, applying the four recognised considerations, the court found the order merited as the land originally belonged to the deceased and alienation would render the suit nugatory. On injunction, since neither party's claim could be determined interlocutorily, the court applied the balance of convenience, guided by Films Rover International, holding that denying the plaintiffs in occupation an injunction would dispossess them. The Notice of Motion was allowed: inhibition and temporary injunction were granted pending determination of the suit, pre-trial directions were to be complied with within twelve months, with no order as to costs.

Key legal issues

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01

Inhibition under Section 68 of the Land Registration Act

Holding

Inhibition granted because the suit land originally belonged to the deceased, at least some plaintiffs reside on it, and alienation before trial would render the plaintiffs' suit nugatory.

Reasoning

The court applied the four considerations: risk of disposal, whether refusal would render the suit nugatory, arguable case, and prejudice to the other party. Since the land originally belonged to the deceased and some plaintiffs reside on it, and the defendant still holds title, an inhibition causes no prejudice while protecting the plaintiffs' claimed trust interest.

p. 3
02

Temporary injunction where registered owner faces occupation by plaintiffs claiming a trust

Holding

Injunction granted on the balance of convenience; denying the plaintiffs, who are in occupation, an injunction would dispossess them and cause great injustice.

Reasoning

Neither the registered proprietor's title nor the plaintiffs' trust claim could be determined at the interlocutory stage. Applying Giella and Films Rover International, the court chose the course carrying the lower risk of injustice: preserving the status quo with plaintiffs in occupation pending trial.

p. 3
03

Challenge to the 1st plaintiff's capacity to sue on grounds of illness

Holding

The court presumed the plaint was properly filed by competent parties until the contrary was proved; the trust claim itself is a matter for the trial court.

Reasoning

The defendant deponed that the 1st plaintiff suffered memory lapse and could not have filed the suit, and challenged the 3rd plaintiff as a Nairobi resident. The court held these issues, including whether the land is held in trust, cannot be resolved on the application and are matters for trial.

p. 2

Legal principles established

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  • An order of inhibition is akin to a prohibitory injunction, restricting the registered owner and others from transactions on the land pending determination of the suit.
  • The court should take the course that carries the lower risk of injustice if it turns out to have been wrong (balance of convenience).
  • A plaint is presumed to be properly filed by competent parties until the contrary is proved.

Court orders

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  1. 1.An order of inhibition inhibiting any dealings on land parcel No. MUTIRA/KAGUYU/142 until this suit is heard and determined
  2. 2.An order of temporary injunction restraining the defendant from sub-dividing, transferring, alienating, leasing or in any other way disposing land parcel No. MUTIRA/KAGUYU/142 pending the hearing of this suit
  3. 3.The parties to comply with pre-trial directions so that this suit is heard and determined within the next twelve (12) months
  4. 4.No order as to costs of the application

Authorities

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Legislation

  • Land Registration ActSection 68(1)
  • Civil Procedure RulesOrder 40 Rules 1 and 4

Cases cited (3)

  • PHILIP MWANGI GITHINJI VS GRACE MAKARIMA GITHINJI
    (2004) e K.L.R
  • GIELLA VS CASSMAN BROWN & CO. LTD
    1973 E.A 358
  • FILMS ROVER INTERNATIONAL LTD VS CANNON FILMS SALES LTD
    1986 3 ALL ER 772
Jurisdiction invoked
Section 68 of the Land Registration Act and Order 40 Rules 1 and 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, "Hannah Wangui Mathenge & 2 others v Rose Muthoni Mathenge [2017] KEELC 2526 (KLR)", Case Analysis (2017). ELC Case of 2017 (formerly Kerugoya High Court Civil Suit No. 31 of 2017, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2526/eng@2017-05-19

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