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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 13th December, 2018)· [2018] KEELC 506 (KLR)

Dionecia Ciandeke v Ndururu Nyaga [2018] KEELC 506 (KLR)

Environment and Land Court
17 December 2018
PNP.M. Njoroge
1,113 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Chuka blocked the sale of disputed family land, protecting a woman claiming customary trust rights over parcels registered to her step-nephew.

What this practically means

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Executive summary

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The plaintiff, Dionecia Ciandeke, moved the Environment and Land Court at Chuka by notice of motion dated 13th December, 2018 seeking temporary and permanent injunctions restraining the defendant, Nyaga Nkoroi alias Njeru Nyaga Itugura, from selling, transferring or disposing of land parcel Karingani/Ndagani/294 and its numerous subdivisions, together with Karingani/Ndagani/1046. She alleged that the properties are trust lands held under a customary trust with intergenerational equity in mind; that her mother had caused the original parcels to be registered in the name of the plaintiff's half-brother in 1976 because women then lacked identity cards; and that the defendant, the step-son of that half-brother, fraudulently had himself registered as owner in 1994 by claiming that the name Njeru Nyaga was his common name. She relied on an affidavit deponing that the defendant had previously sworn in Meru High Court originating summons No. 127 of 1996 that Njeru Nyaga was a stranger to him, and that the defendant was hell bent on selling the land, which would disinherit her and other dependants and render the suit academic. In a brief interlocutory ruling, the court found an arguable basis for granting prayer 2. Considering the imminent court recess and the judge's upcoming leave, it held preservation of the suit property was necessary. It declined to certify the matter urgent but directed priority hearing, granted prayer 2 in terms of section 63(e) of the Civil Procedure Act pending hearing of the application, issued an inhibition against all parcels named in that prayer, ordered proper service on the defendant, and set the application for hearing on 2nd April, 2019. No costs order was made.

Key legal issues

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01

Whether to grant a temporary injunction and inhibition over the suit properties

Holding

The applicant established an arguable basis for granting the interlocutory injunctive relief; prayer 2 was granted under section 63(e) of the Civil Procedure Act with an order of inhibition over the parcels.

Reasoning

The court perused the pleadings and found the applicant had demonstrated an arguable case concerning trust land allegedly fraudulently registered in the defendant's name and at risk of disposal. Given the impending court recess and the judge's leave, preservation of the suit property was considered necessary in the interest of justice, justifying interim relief under section 63(e) of the Civil Procedure Act.

p. 2
02

Whether the application warranted certification as urgent

Holding

Certification as urgent was refused, but the matter was directed to be heard on a priority basis.

Reasoning

Although the applicant sought urgency certification, the court chose instead to prioritise the hearing. The court noted the impending recess and the judge's absence until March, making preservation of the property important, but declined formal urgency certification while giving the matter priority in the cause list.

p. 2

Legal principles established

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  • A court may grant an order of inhibition to preserve suit property pending hearing, in the interest of justice, under section 63(e) of the Civil Procedure Act

Court orders

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  1. 1.Matter NOT certified urgent but to be heard on priority basis
  2. 2.Prayer 2 granted in terms of section 63(e) of the Civil Procedure Act pending hearing of the application, and an order of inhibition issued against all parcels of land mentioned in prayer 2
  3. 3.The application to be properly served upon the defendant
  4. 4.The application to be heard on 2nd April, 2019

Authorities

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Legislation

  • Civil Procedure ActSection 63(e)
Jurisdiction invoked
Section 63(e) of the Civil Procedure Act

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, "Dionecia Ciandeke v Ndururu Nyaga [2018] KEELC 506 (KLR)", Case Analysis (2018). Not stated in the judgment (Notice of Motion dated 13th December, 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/506/eng@2018-12-17

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