Hubuu Seif Mohamed v Sultana Fadhil & others [2017] KEELC 2718 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for an interlocutory injunction
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
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.
Whether the Registrar's cancellation of the Plaintiff's title was lawful
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
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.
Whether the interim injunction granted ex parte on 23rd March 2016 should be vacated
The interim orders were vacated because the Plaintiff's application, on which they were founded, was dismissed
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.
Legal principles established
#- 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
#- 1.The Plaintiff's application dated 22nd March 2016 is dismissed
- 2.The interim orders of injunction granted on 23rd March 2016 are vacated
- 3.The Plaintiff shall bear the costs of the two applications
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land in Kilifi County (not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.