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ELCDismissedNotice of Motion dated 19th May 2015 (suit relating to land parcel Kajiado/Kisaju/598 and its subdivisions)· [2017] KEELC 3153 (KLR)

Ntetei Mula Kasikua v National Land Commission & 20 others [2017] KEELC 3153 (KLR)

Environment and Land Court
17 March 2017
MGMary M. Gitumbi
2,855 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff, Ntetei Mula Kasikua, sued on behalf of the estate of her late husband, Mula Ole Nkurne Kasikua, who died intestate on 8th September 1993 as the registered proprietor of Kajiado/Kisaju/598. She obtained a confirmed grant in Kajiado Succession Cause No. 53 of 2010 and discovered the parcel had been subdivided into numerous subdivisions and transferred to various purchasers. By Notice of Motion dated 19th May 2015 she sought a temporary injunction restraining the Defendants from interfering with the suit properties, deposit of original title deeds, and registration of restrictions, alleging that the mutation form, transfer documents and land control consents were forged posthumously. The 8th Defendant claimed to have purchased six subdivisions in 1996 and 1999 from the deceased's sons with the Plaintiff's knowledge; the 20th and 21st Defendants claimed to be bona fide purchasers for value in possession with indefeasible titles. Applying Giella v Cassman Brown, the court found the Plaintiff had established a prima facie case with a probability of success, since documents dated 1996 could not have been validly executed by a deceased registered owner, and that damages would not adequately compensate her. However, the balance of convenience tilted towards the Defendants, who had invested substantial sums and remained in possession, the Plaintiff having been inactive for over 17 years. Failing to satisfy all three conditions, the Plaintiff's application was dismissed with costs in the cause, the Defendants remaining in possession pending trial.

Key legal issues

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01

Whether the Plaintiff established a prima facie case with a probability of success

Holding

Yes - the death of the registered owner in 1993 preceded the 1996 mutation, transfer and land control documents relied on by the Defendants, making the Plaintiff's forgery claim plausible

Reasoning

The deceased died on 8th September 1993 yet the mutation form, transfer documents and land control board consent were dated 1996, three years after his death. The 8th Defendant could not explain how a deceased registered owner signed documents and attended a land control board meeting. The Plaintiff's contention that the documents were forgeries was therefore plausible, establishing an apparently infringed right requiring rebuttal at trial.

p. 5
02

Whether damages would adequately compensate the Plaintiff

Holding

No - no amount of money would compensate for the infringement of the Plaintiff's right of possession over land claimed as the deceased's estate

Reasoning

Relying on Niaz Mohamed Jan Mohamed v The Commissioner of Lands, the court held that land of this nature cannot be adequately compensated by an award of damages, so the second Giella condition was satisfied in the Plaintiff's favour.

p. 5
03

Where the balance of convenience lies

Holding

The balance of convenience tilts in favour of the Defendants, who shall remain in possession pending trial

Reasoning

The Plaintiff's inaction for over 17 years allowed various Defendants to purchase portions and invest large sums of money, with some in possession. The court considered it fair that the Plaintiff bear the inconvenience of the status quo pending full trial, and urged her to expedite the hearing.

p. 5

Legal principles established

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  • The conditions for an interlocutory injunction are a prima facie case with probability of success, irreparable injury not compensable in damages, and, if in doubt, the balance of convenience
  • A prima facie case in a civil application is a genuine and arguable case in which a right has apparently been infringed so as to call for an explanation or rebuttal
  • In an interlocutory application the court makes no conclusive or definitive findings of fact or law on contradictory affidavit evidence

Court orders

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  1. 1.The Notice of Motion dated 19th May 2015 is dismissed
  2. 2.Costs in the cause
  3. 3.The Defendants/Respondents shall remain in possession of the suit properties pending the hearing and determination of this suit

Authorities

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Legislation

  • Registered Land Actprovisions on indefeasibility of title

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
  • Niaz Mohamed Jan Mohamed versus The Commissioner of Lands
    (1996) eKLR
  • Nguruman Ltd versus Jan Bonde Nielsen
    (2014) eKLR
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant interlocutory relief in a suit concerning land registered as Kajiado/Kisaju/598 (dispute over title and trespass on land within its jurisdiction)

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, "Ntetei Mula Kasikua v National Land Commission & 20 others [2017] KEELC 3153 (KLR)", Case Analysis (2017). Notice of Motion dated 19th May 2015 (suit relating to land parcel Kajiado/Kisaju/598 and its subdivisions). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3153/eng@2017-03-17

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