Antony Muriithi Njeru v Njeru M’thaiya & another [2017] KEELC 3652 (KLR)
The bottom line
#The Environment and Land Court refused to block land dealings because the plaintiff had no legally recognised interest and hid a pending eviction case.
What this practically means
#Executive summary
#Key legal issues
#Whether the plaintiff had good grounds for a prohibitory order
The application failed because the plaintiff disclosed no legally recognised interest in the original parcel or its sub-divisions; at most he was a licensee of the 1st defendant
The court considered the five factors for inhibition orders and found the plaintiff's locus highly in doubt. He never pleaded that the 1st defendant held the original land in trust for him, nor any adverse possession claim. Registration vests all rights in the registered owner subject only to overriding interests under Section 28 of the Land Registration Act, none of which were pleaded. Only the 1st defendant, as former registered owner, could complain of fraud against the 2nd defendant.
Whether the plaintiff came to court with clean hands
He did not, having pleaded falsely that no other suit was pending while Runyenjes Civil Case No. 41 of 2014 for his eviction was pending
The 2nd defendant deponed, unrebutted, that a case was pending at the Runyenjes Principal Magistrate's Court seeking the plaintiff's eviction from the suit land. Yet paragraph 8 of the plaint asserted that no other suit existed between the parties over the same subject matter. This non-disclosure disentitled the plaintiff to the equitable remedy of inhibition and rendered the suit an abuse of the court's process.
Treatment of a 'home-made' application drawn by a lay person
Defects in a poorly drawn application are curable under Article 159 of the Constitution and Order 51 Rule 10 of the Civil Procedure Rules, though advocates taking over should amend such pleadings
The Notice of Motion was filed when the plaintiff acted in person and neither cited the legal provision founding it nor was elegantly drawn. The court nonetheless proceeded to determine it on the merits under the overriding objective. The court observed as good practice that counsel taking over a matter should amend lay-drawn pleadings so the real issues can be identified for interrogation.
Legal principles established
#- A prohibitory order (inhibition) can only issue to protect an interest recognised in law; it cannot be granted in a vacuum
- A party seeking equitable relief must make full and frank disclosure of previous or pending litigation over the same subject matter
Court orders
#- 1.The plaintiff's Notice of Motion filed on 10th July 2014 seeking a prohibition order is dismissed
- 2.Costs of the application to both defendants
- Jurisdiction invoked
- Section 68(1) of the Land Registration Act (jurisdiction to issue orders of inhibition)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Antony Muriithi Njeru v Njeru M’thaiya & another [2017] KEELC 3652 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3652/eng@2017-02-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.