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ELCDismissedELC. NO. 119 OF 2015· [2017] KEELC 3485 (KLR)

Martha Wangui Gichigi & another v Henry Gitahi Thurura [2017] KEELC 3485 (KLR)

High Court of Kenya
16 February 2017
2,256 words in judgment
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The bottom line

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The High Court in Busia refused to stop occupation of disputed land because the applicants held no title and gave no undertaking to pay damages.

What this practically means

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Executive summary

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In this interlocutory ruling, the Environment and Land Court at Busia (A.K. Kaniaru, J) dealt with a Notice of Motion dated 28/4/2016 brought by the two plaintiffs under sections 3A and 63(e) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking an injunction to restrain the defendants from trespassing on, entering or remaining in occupation of developed housing premises on land parcel NORTH TESO/KAMURIAI/1003 pending the hearing of the suit. The plaintiffs claimed the land had been bought by the 1st plaintiff for her late handicapped daughter, who died intestate, and that the 1st defendant irregularly had it registered in his name and sold it to the 2nd defendant, Stabex International Ltd. The 1st defendant filed grounds of opposition asserting the sale was made with the plaintiffs' knowledge; the 2nd defendant maintained it was an innocent purchaser for value without notice of any defect. The court adopted a circumspect approach, refusing to decide substantive issues such as whether the Land Registration Act has ousted the innocent purchaser doctrine, citing conflicting authorities on both sides. It found that the 2nd defendant holds registered title while the plaintiffs do not, that the alleged fraud largely predates the 2nd defendant's purchase, that the plaintiffs gave no undertaking in damages, and that the injunction was targeted mainly at the 2nd defendant though the central player was the 1st. The application was dismissed with costs on 16 February 2017.

Key legal issues

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01

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

Holding

No prima facie case was established; the plaintiffs are not title holders and the presumption of ownership favours the 2nd defendant who holds registered title

Reasoning

The court noted that the 2nd defendant holds title to the suit land having purchased it from the 1st defendant, while the plaintiffs hold no title. Following Jamin Kiombe Lidodo, an applicant who has not shown title cannot safely be held to have a prima facie case. The fraud alleged largely predates the 2nd defendant's purchase. The plaintiffs also failed to give an undertaking as to damages, which the court treated as an independent ground for refusing the injunction.

p. 4
02

The effect of the plaintiffs' failure to give an undertaking as to damages

Holding

The failure to give an undertaking as to damages is an obvious disadvantage and bars the grant of an injunction

Reasoning

Relying on Gati v Barclays Bank (K) Ltd, the court held that an undertaking as to damages is one of the criteria for granting an injunction. The plaintiffs, seeking to restrain a registered title holder, gave no such undertaking; instead the 2nd defendant offered one. This omission weighed decisively against the grant of the temporary injunction.

p. 4
03

Whether the court should determine the innocent purchaser doctrine vis-à-vis the Land Registration Act at the interlocutory stage

Holding

The court declined to resolve the conflicting authorities on whether the Land Registration Act ousts the innocent purchaser principle, as doing so would determine an issue reserved for trial

Reasoning

The court observed that plaintiffs relied on Elijah Makeri Nyaagwa'ra supporting the view that the Land Registration Act neutered the innocent purchaser defence, while the 2nd defendant relied on Shimoni Resort taking a contrary view. Deciding between them would prematurely determine a substantive trial issue, contrary to Shitakha v Mwando and Mbuthia v Jimba Credit Finance Corporation.

p. 3

Legal principles established

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  • An undertaking as to damages is one of the criteria for granting an injunction; where none has been given, an injunction cannot issue
  • Where an applicant for an injunction has not shown title to the suit land, it is unsafe to hold that a prima facie case is made
  • A court at the interlocutory stage should not decide substantive issues or make final findings of fact, but should weigh the relative strengths of each side's propositions

Court orders

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  1. 1.The plaintiffs' Notice of Motion dated 28/4/2016 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSections 3A and 63(e)
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Land Registration Actnot specified

Cases cited (12)

  • Peter Nderitu Julius v Humphrey Wangombe Kahariri & Another
    ELC. NO. 80 OF 2012, Kerugoya
  • Elijah Makeri Nyaagwa'ra v Stephen Mungai Njuguna & Another
    ELC. NO. 609 B/2012, Eldoret; also cited as [2013] e KLR
  • Janet Flora Muna v John Karanu Ikinu & 2 Others
    [2015] e KLR
  • Shimoni Resort v Registrar of Titles & Five Others
    [2016] e KLR
  • Charles Karathe Kiarie & 2 Others v Administrators of the Estate of John Wallance Mathare (Deceased) & 5 Others
    [2013] e KLR
  • Zebak Limited v Nadem Enterprises
    [2016] e KLR
  • Shitakha v Mwando & 4 Others
    [1986] KLR 445
  • Mbuthia v Jimba Credit Finance Corporation & Another
    [1988] KLR 1
  • Gati v Barclays Bank (K) Ltd
    [2001] KLR 525
  • Jamin Kiombe Lidodo v Emily Jerono Kiombe & Another
    HCC. NO. 81/2005 (unreported)
  • Kenya Hotels Limited v Kenya Commercial Bank Ltd & Another
    [2004] 1 KLR 80
  • Giela v Cassman Brown & Co. Ltd
    [1973] EA 358
Jurisdiction invoked
Sections 3A and 63(e) of the Civil Procedure Act (Cap 21) and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules

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, "Martha Wangui Gichigi & another v Henry Gitahi Thurura [2017] KEELC 3485 (KLR)", Case Analysis (2017). ELC. NO. 119 OF 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3485/eng@2017-02-16

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