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ELCDismissedNot stated in judgment (Plaintiff's Notice of Motion dated 22nd March 2016; Defendants' Notice of Motion dated 5th April 2016)· [2017] KEELC 2718 (KLR)

Hubuu Seif Mohamed v Sultana Fadhil & others [2017] KEELC 2718 (KLR)

Environment and Land Court
2 June 2017
2,681 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to protect a landowner whose title had been cancelled and who could not prove how she inherited the land.

What this practically means

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Executive summary

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The Plaintiff, Hubuu Seif Mohamed, applied by Notice of Motion dated 22nd March 2016 for an interlocutory injunction restraining the Defendants from dealing with, selling, developing or interfering with land registration number CR. 65740 measuring 7.927 hectares at Takaungu Trading Centre, Kilifi County, pending determination of her suit. She claimed to have inherited the land from her late grandparent and alleged the Defendants had hired squatters and goons to invade the land and intended to dispose of it. Ex parte interim orders were granted by Angote J on 23rd March 2016. The Defendants opposed, denying any interest in the suitland, and filed their own application seeking to vacate the interim orders and to have the suit dismissed. They exhibited a letter dated 3rd March 2016 from the Land Registrar, Mombasa, invoking Section 79 of the Land Registration Act, rectifying the register and calling on the Plaintiff to surrender title CR 65740 for cancellation, it having been erroneously issued over land registered since 1974 as CR 14387 and later transferred to one Nahla Fadhil. The court applied the Giella and Nguruman tests and the Mrao definition of a prima facie case. It found no evidence that the Defendants hired goons or invaded the land, that the Plaintiff's claim of inheritance was unsupported by any evidence of transmission, and that her title had been cancelled by the Registrar without her challenging that cancellation. She was found to have neither occupied nor controlled the land nor demonstrated an unmistakable right requiring protection. The court dismissed the Plaintiff's application, vacated the interim orders of 23rd March 2016, and ordered the Plaintiff to bear the costs of both applications.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for an interlocutory injunction

Holding

The Plaintiff failed to establish a prima facie case; no evidence showed the Defendants hired goons to invade the suitland, her title had been cancelled by the Registrar, and she produced nothing to validate it or show transmission of the land to her

Reasoning

Applying Giella and Nguruman, the court found the Plaintiff's claim rested on inheritance from her grandparent but she produced no evidence of transmission. Her certificate of title CR 65740 had been rectified and called for cancellation by the Land Registrar pursuant to Section 79 of the Land Registration Act, and she took no steps to challenge that cancellation. The photographs exhibited did not show any invasion, and no nexus between the Defendants and the alleged invasion was demonstrated.

p. 5
02

Whether the Registrar's cancellation of the Plaintiff's title was lawful

Holding

The Registrar had power under Section 79 of the Land Registration Act to rectify the register where a document was obtained by fraud; the Plaintiff did not challenge the cancellation and her assertion that it was ultra vires was unsupported

Reasoning

Section 79(1) empowers the Registrar to rectify the register or any instrument, and Section 79(2) permits rectification where the document was obtained by fraud. The Registrar's letter of 3rd March 2016 required surrender of title CR 65740 for cancellation after rectification to reflect the earlier title CR 14387. The Plaintiff merely asserted ultra vires in her Replying Affidavit without taking any action to challenge the cancellation, and did not disclose the cancellation to the court when filing the suit.

p. 5
03

Whether the interim injunction granted ex parte on 23rd March 2016 should be vacated

Holding

The interim orders were vacated because the Plaintiff's application, on which they were founded, was dismissed

Reasoning

Having found no prima facie case, no demonstration of irreparable injury and no unmistakable right threatened, the court dismissed the Plaintiff's application and consequently vacated the interim orders granted by Angote J on 23rd March 2016. The Defendants' notice to vacate succeeded in substance, and the Plaintiff was to bear the costs of both applications.

p. 5

Legal principles established

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  • An applicant for an interlocutory injunction must establish a prima facie case with a probability of success, demonstrate irreparable injury, and, if in doubt, show that the balance of convenience is in her favour
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to challenge only on grounds of fraud or misrepresentation, or where it was acquired illegally, unprocedurally or through a corrupt scheme

Court orders

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  1. 1.The Plaintiff's application dated 22nd March 2016 is dismissed
  2. 2.The interim orders of injunction granted on 23rd March 2016 are vacated
  3. 3.The Plaintiff shall bear the costs of the two applications

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 79(1) and 79(2)

Cases cited (3)

  • Nguruman Ltd -vs- Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Giella -vs- Cassman Brown Co Ltd
    (1973) EA 358
  • Mrao Ltd -vs- First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land in Kilifi County (not expressly cited in the judgment)

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, "Hubuu Seif Mohamed v Sultana Fadhil & others [2017] KEELC 2718 (KLR)", Case Analysis (2017). Not stated in judgment (Plaintiff's Notice of Motion dated 22nd March 2016; Defendants' Notice of Motion dated 5th April 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2718/eng@2017-06-02

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