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ELCDismissedNotice of Motion dated 9th July 2015 (suit over parcel Gatamaiyu/Kagwe/1981)· [2017] KEELC 3123 (KLR)

Mary Nduta Kimemia v John Warubi Kibera [2017] KEELC 3123 (KLR)

Environment and Land Court of Kenya
24 March 2017
MGMary M. Gitumbi
2,050 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to stop a land sale because the buyer paid for land never subdivided and lacked land control board consent.

What this practically means

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Executive summary

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The Plaintiff, Mary Nduta Kimemia, moved the court by Notice of Motion dated 9th July 2015 seeking a temporary injunction restraining the Defendant, John Waburi Kibera, from entering, dealing with, selling, damaging, trespassing on or alienating land parcel Gatamaiyu/Kagwe/1981 pending trial. She relied on two sale agreements (2002 and 2006) for two acres out of the suit property, under which she paid a total of Kshs. 710,000/- and took vacant possession, developing the land. She alleged the Defendant later offered the land to a third party and obtained title in February 2012 without disclosure. The Defendant opposed, contending the transactions were void for want of land control board consent within six months, that the Plaintiff's only remedy was recovery of the money paid as a civil debt, and asserting a counterclaim of Kshs. 1.6 million. Applying the Giella v Cassman Brown conditions and the definition of a prima facie case in Mrao v First American Bank, the court found no prima facie case with probability of success. The suit property was never subdivided to yield the two acres allegedly sold, contrary to section 42 of the Land Registration Act, creating uncertainty over the subject matter; and the transactions, being controlled transactions under the Land Control Act, became void for want of consent within six months, the Plaintiff's remedy being a refund under section 7. Since the conditions are sequential, the remaining grounds were not considered. The application was dismissed with costs in the cause.

Key legal issues

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01

Whether the Plaintiff made out a prima facie case with a probability of success

Holding

No - the exact portions sold were never subdivided, creating uncertainty, and the sale agreements became void for lack of land control board consent

Reasoning

The suit property (approximately 3 acres) was never subdivided to yield the 2 acres allegedly purchased, contrary to section 42 of the Land Registration Act, so it is unclear what portion was agreed to be sold. Further, the transactions were controlled transactions under the Land Control Act and no consent was obtained within six months, rendering them void. The Plaintiff's remedy is a refund of the Kshs. 710,000/- paid under section 7 of the Land Control Act, not an injunction.

p. 3
02

Whether the remaining Giella v Cassman Brown conditions (irreparable injury, balance of convenience) should be considered

Holding

No - the conditions are sequential and failure of the first disposes of the application

Reasoning

Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society and Nguruman Ltd v Jan Bonde Nielsen, the court held that where a prima facie case is not established, irreparable injury and balance of convenience need no consideration. The court therefore did not venture into the other grounds.

p. 3

Legal principles established

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  • Where a controlled agricultural transaction becomes void for want of land control board consent within six months, the purchaser's remedy is recovery of money paid as a debt, not specific enforcement or injunctive relief
  • The conditions for an interlocutory injunction are sequential; failure of the first (prima facie case) ends the inquiry
  • No part of registered land may be transferred unless first subdivided and each subdivision duly registered

Court orders

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  1. 1.Dismissal of the Plaintiff's Application for temporary injunction
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Land Registration Actsection 42
  • Land Control Act Cap 302section 7

Cases cited (5)

  • Giella versus Cassman Brown
    (1973) EA 358
  • Mrao versus First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Airland Tours & Travels Ltd versus National Industrial Credit Bank
    Milimani High Court Civil Case No. 1234 of 2002
  • Kenya Commercial Finance Co. Ltd versus Afraha Education Society
    (2001) 1 EA 86
  • Nguruman Ltd versus Jan Bonde Nielsen
    (2014) eKLR
Jurisdiction invoked
Original civil jurisdiction over the suit land (temporary injunction application in a pending suit)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mary Nduta Kimemia v John Warubi Kibera [2017] KEELC 3123 (KLR)", Case Analysis (2017). Notice of Motion dated 9th July 2015 (suit over parcel Gatamaiyu/Kagwe/1981). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3123/eng@2017-03-24

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