Rose Wangari Ndungu & another (suing on their own behalf and their own benefit and on behalf of and for the benefit of the estate of the late Mr. Stanley Ndungu Njoroge (Deceased) v Catherine Njeri [2017] KEELC 2774 (KLR)
The bottom line
#Kenya's Environment and Land Court protected a registered landowner's title and penalised a buyer who hid a pending suit when seeking an injunction.
What this practically means
#Executive summary
#Key legal issues
#Prima facie title and injunction against a registered owner
The Plaintiffs in ELC 297 of 2014, as registered proprietors, were prima facie absolute and indefeasible owners under Sections 24(a), 25(1) and 26(1) of the Land Registration Act and were entitled to preservation of the property by way of temporary injunction
The court noted that title was issued to the applicants after confirmation of grant in Succession Cause No. 654 of 2012 and there was no evidence the applicant objected to the distribution. The court could not injunct registered owners from their own parcel. However, since the defendant was putting up development on the contested property, preservation via injunction was warranted pending trial.
Clean hands and material non-disclosure
Catherine Njeri's application failed because she was guilty of material non-disclosure, having filed a fresh suit and injunction application while ELC 297 of 2014 over the same subject matter was pending, instead of filing a counterclaim
The court found she knew of the earlier suit but chose to file a separate suit and seek injunctive relief. Being an equitable remedy, an injunction could not issue to a party undeserving of equitable relief. Her application was dismissed entirely with costs.
Mismatch between interlocutory and permanent prayers
Catherine Njeri had not sought a permanent injunction in her main suit, so an interlocutory injunction could not issue as the orders would be at variance with the prayers in the plaint
The court observed that the applicant's plaint in ELC 1282 of 2014 sought declarations, cancellation of title and determination of the deceased's share, but no permanent injunction. Citing Dismas Odour Owuor v Housing Finance Company (K) Ltd, interlocutory orders at variance with permanent orders sought cannot be granted.
Legal principles established
#- A registered proprietor is the absolute and indefeasible owner of land under Section 26(1) of the Land Registration Act, subject only to fraud, misrepresentation or acquisition by illegal, unprocedural or corrupt scheme
- An interlocutory injunction is an equitable remedy refused to a party who has not come to court with clean hands or has been guilty of material non-disclosure
- Interlocutory injunctions cannot be granted where they are at variance with the permanent orders sought in the main suit
- In interlocutory applications the court makes no conclusive findings of fact or law on contradictory affidavit evidence
Court orders
#- 1.Notice of Motion dated 29th September 2014 dismissed entirely with costs to the Defendants
- 2.Order issued by the Court on 18th March 2015 vacated and/or discharged for non-disclosure of material facts
- 3.Temporary injunction granted restraining Catherine Njeri, her agents and/or servants from damaging, wasting, constructing or carrying further development thereon, alienating or disposing of LR No. Dagoretti/Riruta/6213 pending the hearing and determination of the suit
- 4.Costs of the Notice of Motion dated 22nd June 2015 in the cause
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rose Wangari Ndungu & another (suing on their own behalf and their own benefit and on behalf of and for the benefit of the estate of the late Mr. Stanley Ndungu Njoroge (Deceased) v Catherine Njeri [2017] KEELC 2774 (KLR)", Case Analysis (2017). ELC No. 297 of 2014 (consolidated with ELC No. 1282 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2774/eng@2017-05-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.