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ELCDismissedNotice of Motion dated 26th February 2018 (suit number not stated in judgment)· [2018] KEELC 111 (KLR)

Elizabeth Muthoni Hussein v Vikesh Jinit Shah [2018] KEELC 111 (KLR)

Environment and Land Court
10 December 2018
LGL. GACHERU
4,466 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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When Kenya's Lands office accidentally issues two titles over the same parcel, the earlier-issued title wins unless fraud is proved at trial.

What this practically means

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Executive summary

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The Plaintiff, Elizabeth Muthoni Hussein, applied by Notice of Motion dated 26th February 2018 under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 1(a) of the Civil Procedure Rules for a temporary injunction restraining the Defendant from trespassing on, dealing with, alienating or wasting Thika Municipality Block 6/2, and a mandatory injunction directing the Defendant to demolish his structures on the property at his own cost. She claimed ownership under a Certificate of Lease issued on 4th October 2016 after her earlier plot was allegedly allocated to another party. The Defendant, Vikesh Jinit Shah, opposed the application, asserting he was a bona fide purchaser for value from Arrowland Consultants in 2012, registered earlier than the Plaintiff, in possession and developed, and alleging the Plaintiff's title was fraudulently procured. The court applied the Giella v Cassman Brown principles. It found the Defendant's title was first in time and that the genuineness of the competing titles could only be determined at trial, so the Plaintiff had no prima facie case. The Plaintiff had never been in possession and damages would be adequate compensation; on the balance of convenience the status quo, being the Defendant's possession, should be maintained. The demolition prayer was a mandatory injunction for which no exceptional circumstances were shown. The court dismissed the application entirely with costs to the Defendant and directed compliance with Order 11 within 30 days, with pre-trial directions on 7th March 2019 before the Deputy Registrar.

Key legal issues

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01

Prima facie case

Holding

The Plaintiff failed to establish a prima facie case because the Defendant holds a title first in time over the same parcel

Reasoning

Both parties hold titles over Thika Municipality Block 6/2. The Defendant's title was allocated on 6th November 2012 and he was in possession of his title deed before the Plaintiff acquired hers on 4th October 2016. Whether the Defendant's title is genuine is a matter for evidence at trial, but on the face of the documents the first-in-time title prevails unless contradicted.

p. 5
02

Irreparable harm

Holding

The Plaintiff would not suffer irreparable loss; damages would be adequate compensation

Reasoning

The Plaintiff has never been in possession of the suit property and the photographs she annexed showed an old perimeter wall, not a recent construction. No injury would be occasioned to her if injunctive orders are not granted, so damages would suffice if she succeeds at trial.

p. 5
03

Balance of convenience

Holding

The balance of convenience would tilt towards maintaining the status quo, which is the Defendant's possession

Reasoning

The court was not in doubt on the balance of convenience, but if it were to decide the question, it would favour maintaining the status quo since the Defendant is in possession, in line with the principle in Virginia Edith Wambui v Joash Ochieng Ougo.

p. 5
04

Mandatory injunction at interlocutory stage

Holding

The demolition prayer was refused as no exceptional circumstances were shown

Reasoning

A mandatory injunction on interlocutory application requires special circumstances such as a clear case, a simple and summary act easily remedied, or an attempt by the Defendant to steal a march. The Plaintiff had never been in possession and the perimeter wall was not a new construction, so none of these circumstances existed.

p. 6

Legal principles established

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  • Where the Commissioner of Lands issues two titles over the same parcel, both apparently issued regularly and without fraud, the title first in time prevails
  • No injunction should normally be granted where damages recoverable at common law would be an adequate remedy
  • A mandatory injunction will not normally be granted on an interlocutory application in the absence of special circumstances

Court orders

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  1. 1.The Notice of Motion application dated 26th February 2018 is dismissed entirely with costs to the Defendant/Respondent
  2. 2.Parties to comply with Order 11 within 30 days from the date of the order
  3. 3.Pre-trial directions on 7th March 2019 before the Deputy Registrar

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A
  • Civil Procedure Rules 2010Order 40 Rule 1(a), Order 51 Rule 1, Order 11
  • Land Registration Act No. 3 of 2012Sections 24, 25(1), 26(1)(a) and (b), 28
  • Constitution of KenyaArticle 64
  • Registration of Titles Act Cap 281Section 2

Cases cited (18)

  • Exclusive Estates Ltd vs Kenya Posts & Telecommunications Corporation & Another
    Civil Appeal No.62 of 2004
  • Giella vs Cassman Brown and Co Ltd
    (1973) 358 / 1973 EA 358
  • Moses C Muhia Njoroge & 2 others vs Jane W Lesaloi & 5 others
  • Mrao Ltd vs First American Bank of Kenya
  • Kenleb Cons Ltd vs New Gatitu Station & Another
  • JM Gichanga versus Cooperative Bank of Kenya Limited
    (2005) eKLR
  • Panari Enterprises Limited vs Lijoodi & 2 Others
    (2014) eKLR
  • Arthi Highway Developers Limited vs West End Butchery Limited & 6 Others
    (2015) eKLR
  • Wreck Motors vs Commissioner of Lands
    C.A No.71/1997 (unreported)
  • Charles Alex Njoroge vs National Bank of Kenya Ltd & Another
    (2015) eKLR
  • Jan Bolden Nielsen vs Herman Phillipius Steyn & 2 others
    (2012) eKLR
  • Suleiman vs Amboseli Resort Ltd
    (2004) eKLR 589
  • Gitwany Investment Ltd & 3 Others vs Commissioner of Lands
    HCCC No.1114 of 2002
  • Kibutiri vs Kenya Shell
    Nairobi High Court Civil Case No.3398 of 1980 (1981) KLR
  • E.A Industries vs Trufoods
    (1972) EA 420
  • Wairimu Mureithi vs City Council of Nairobi
    Civil Appeal No.5 of 1979 (1981) KLR 322
  • Virginia Edith Wambui vs Joash Ochieng Ougo
    Civil Appeal No.3 of 1987 (1987) eKLR
  • Kenya Breweries Ltd & Ano vs Washington O. Okeyo
    Civil Appeal No.332 of 2000, 1EA 109
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 1(a) and Order 51 Rule 1 of the Civil Procedure Rules 2010

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (7)

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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, "Elizabeth Muthoni Hussein v Vikesh Jinit Shah [2018] KEELC 111 (KLR)", Case Analysis (2018). Notice of Motion dated 26th February 2018 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/111/eng@2018-12-10

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