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ELCAllowed· [2017] KEELC 2676 (KLR)

Selyna Z. Musandu v Commissioner of Land & 3 others [2017] KEELC 2676 (KLR)

Environment and Land Court
21 June 2017
SKS.M. Kibunja
480 words in judgment
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The bottom line

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A Kenyan court froze all dealings on land covered by two competing title deeds until the ownership dispute is fully decided.

What this practically means

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Executive summary

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The Plaintiff, Selyna Z. Musandu, one of four administrators of the estate of the late Shadrack Jorim Wamari Musandu, moved the court by notice of motion under Sections 1A and 1B of the Civil Procedure Act and Order 40 of the Civil Procedure Rules seeking a temporary injunction against the 4th Defendant, George Adada Nyangowa, restraining him from trespassing onto, alienating or interfering with the suit property pending the hearing of the suit. The application was supported by her affidavit sworn on 24th February 2016 and opposed through the 4th Defendant's replying affidavit of 9th November 2016. The court framed two issues: whether the Plaintiff had established a prima facie case with a probability of success at the interlocutory stage, and who should bear the costs. The court found that the deceased was registered leasehold proprietor of L.R. 18998 (1.2 hectares) under a 1994 grant, while the 4th Defendant was registered leasehold proprietor of L.R. 29996 (1.2 hectares) under a grant of 17th January 2014, but a surveyor's report showed that both grant certificates related to the same parcel of land on the ground. Given the duplication of titles over one parcel, the court held it necessary to preserve the status quo pending trial. The application was allowed as prayed, with costs in the cause. The ruling was delivered on 21st June 2017 by S.M. Kibunja, Environment and Land Judge.

Key legal issues

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01

Prima facie case for temporary injunction

Holding

The Plaintiff, an administrator of the deceased registered proprietor, established a prima facie case where a surveyor's report showed both parties' title grants covered the same parcel of land.

Reasoning

The court found the deceased was registered leasehold proprietor of L.R. 18998 under a 1994 grant, while the 4th Defendant held registration over L.R. 29996 under a 2014 grant over the same land. The duplicity of titles over one parcel demonstrated a real contest requiring preservation of the status quo pending full trial.

p. 2
02

Preservation of status quo pending trial

Holding

An interlocutory injunction was granted to maintain the existing position on the land until the suit is determined.

Reasoning

Because two separate grant certificates existed over the identical 1.2-hectare parcel, the court considered it necessary to restrain interference, alienation or trespass so that the competing claims of ownership could be resolved at the hearing without prejudice to either party.

p. 2

Legal principles established

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  • Where a parcel of land is claimed by two parties under separate documents of ownership, the status quo must be maintained pending hearing and determination of the suit.

Court orders

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  1. 1.Temporary injunction restraining the 4th Defendant from trespassing onto, alienating or interfering with the suit property pending hearing and determination of the suit
  2. 2.Costs in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure RulesOrder 40
Jurisdiction invoked
Sections 1A, 1B of the Civil Procedure Act and Order 40 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, "Selyna Z. Musandu v Commissioner of Land & 3 others [2017] KEELC 2676 (KLR)", Case Analysis (2017). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2676/eng@2017-06-21

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