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ELCAllowedELC (Nairobi) — Notice of Motion dated 10th July 2017 (suit re LR No. 1/580/Nairobi)· [2018] KEELC 374 (KLR)

Menelik House Limited v John Mbugua [2018] KEELC 374 (KLR)

Environment and Land Court
18 December 2018
1,378 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court stopped a rival buyer from collecting rent or disturbing tenants, holding that the first registered owner wins protection while the case continues.

What this practically means

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Executive summary

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This interlocutory ruling of the Environment and Land Court at Nairobi (L. Komingoi J, 18th December 2018) determined the plaintiff's Notice of Motion dated 10th July 2017 seeking a temporary injunction under Section 68(1) of the Land Registration Act and Order 40 of the Civil Procedure Rules. The plaintiff, claiming to be the registered proprietor of LR No. 1/580/Nairobi off Ngong Road, sought to restrain the defendant from interfering with tenants' quiet enjoyment of the property, alleging the defendant had attempted to collect rent from 2nd June 2017. The defendant countered that he had purchased the property in 2010 from the administrators of the estate of Jerry Saphran Osodo and that the plaintiff was merely a tenant under a 1999 tenancy agreement. Relying on Giella v Cassman Brown and Mrao Ltd v First American Bank, the court found the plaintiff had annexed a conveyance dated 17th February 2009 and that Justice L. Gacheru, in ELC 292/2013, had already held the plaintiff to be the registered proprietor with Francis Osodo's consent. Since the defendant's purchase post-dated the plaintiff's, the plaintiff established a prima facie case with probability of success; the loss of rent constituted irreparable harm not compensable by damages, and the balance of convenience favoured the registered proprietor. The application was allowed: a temporary injunction issued restraining the defendant from interfering with the tenants' possession pending the hearing of the suit, and costs of the application were ordered to abide the outcome of the main suit.

Key legal issues

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01

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

Holding

Yes — the plaintiff is the registered proprietor, having purchased earlier (conveyance dated 17th February 2009), while the defendant claims to have purchased later in 2010; the court was guided by the prior ruling in ELC 292/2013.

Reasoning

The plaintiff annexed a certificate of conveyance dated 17th February 2009 as proprietor of LR 1/580. Justice L. Gacheru's ruling in ELC 292/2013 had already found the plaintiff to be the registered proprietor following consent by Francis O. Osodo. The defendant's sale agreement is dated 3rd September 2010, i.e. later than the plaintiff's acquisition; the genuineness of Sella Osodo's signature would be tried at the hearing.

p. 2
02

Whether the plaintiff would suffer irreparable loss not compensable by damages

Holding

Yes — the plaintiff risks losing rent due from the tenants on the suit property.

Reasoning

The defendant had sought to collect rent from the tenants on the suit property from 2nd June 2017. The court found the loss of rent could not adequately be compensated by an award of damages, relying on Oloo v Barclays Bank of Kenya Limited.

p. 2
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Where the balance of convenience lies

Holding

It tilts in favour of the plaintiff, the registered proprietor; preservation of the suit property pending trial is necessary.

Reasoning

The court held that as registered proprietor the plaintiff would suffer greater prejudice if the injunction were denied, and that preserving the suit property pending determination of the suit serves the interests of justice.

p. 2

Legal principles established

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  • An injunction is a discretionary remedy granted on the basis of evidence and sound legal principles.
  • An applicant for an injunction must make full and frank disclosure and show a legal or equitable right requiring protection.

Court orders

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  1. 1.An order of temporary injunction restraining the defendant, his servants, employees, agents and/or any other persons working under his instructions from threatening, interfering and/or in any way interfering with the tenants' quiet enjoyment of possession of LR No. 1/580 Nairobi, along Ngong Road Nairobi, pending the hearing and determination of the suit.
  2. 2.Costs of the application to abide the outcome of the main suit.

Authorities

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Legislation

  • Land Registration ActSection 68(1)
  • Civil Procedure ActSections 1A, 1B, 63(e) and 3A
  • Civil Procedure Rules, 2010Orders 40 and 51

Cases cited (9)

  • Giella vs Cassman Brown & Company Limited
    [1973] EA 358
  • Alex Wainaina t/a John Commercial Agencies vs Janson Mwangangi Wanjihia
    [2015] eKLR
  • Mrao Limited vs First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
  • Catherine Wangui Ngengi vs East African Building Society & Another
  • Wairimu Mureithi vs City Council of Nairobi
    CA at Nairobi, Civil Appeal No. 5 of 1979
  • Njenga vs Njenga
    [1991] KLR 401
  • Kenleb Cons Limited vs New Gatitu Service Station Limited & Another
    [1990] KLR 557
  • Oloo vs Barclays Bank of Kenya Limited
    [2002] KLR 394
  • Menelik House Company Ltd vs Francis Odumbe Osodo (ELC 292/2013, ruling of 13th March 2013)
Jurisdiction invoked
Sections 68(1) Land Registration Act, 2012; Sections 1A, 1B, 63(e) and 3A Civil Procedure Act; Order 40 and 51 Civil Procedure Rules, 2010

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, "Menelik House Limited v John Mbugua [2018] KEELC 374 (KLR)", Case Analysis (2018). ELC (Nairobi) — Notice of Motion dated 10th July 2017 (suit re LR No. 1/580/Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/374/eng@2018-12-18

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