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ELCPartially Allowed· [2018] KEELC 865 (KLR)

Martin Macharia Kamau v Peterson Njoroge & 2 others [2018] KEELC 865 (KLR)

Environment and Land Court
14 November 2018
1,425 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A registered Kenyan landowner won protection from interference with his land, but the court kept a caution on the title until the ownership dispute is fully resolved.

What this practically means

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Executive summary

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The applicant/plaintiff moved the court by amended Notice of Motion dated 5 September 2018 seeking temporary injunctions restraining the 1st and 2nd defendants from dealing with or interfering with LR No. Kitale Municipality Block 2/Tuwan/2756, and an order compelling the Registrar of Land to withdraw a caution and restriction placed on the title. The application was supported by affidavits showing the applicant is the registered proprietor in occupation, and that the caution and restriction remained lodged against the title. The 1st respondent opposed, alleging the applicant had unclean hands, that the parties were joint owners, and that the applicant's title was procured by fraud and misrepresentation. The 2nd and 3rd respondents, sued as custodians of the register, filed no response or submissions. The court found the main issue to be whether the caution and restriction should be removed. It declined prayer 4 (withdrawal of caution and restriction) on the authority of Stephen Kipkebut v Naftali Ogola, holding that such an order would finally determine the suit at the interlocutory stage. On the injunction, the court found a prima facie case since the applicant's title and occupation were unchallenged, but held the second Giella v Cassman Brown condition unmet, as any harm would be compensable in damages. On the balance of convenience, the injunction in prayer 3 was granted, with the caution and restriction to remain in place to protect the 1st respondent's fraud counterclaim and prevent disposal pending suit. Costs were ordered in the cause.

Key legal issues

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01

Prima facie case for injunction

Holding

The applicant, a registered proprietor in occupation whose title and possession were not denied, established a prima facie case

Reasoning

The applicant deponed that he is in occupation and holds title. The 1st respondent did not assert occupation and did not deny the applicant's possession; his defence merely pleads fraud and misrepresentation. Unproved allegations of fraud cannot displace the registered owner's prima facie case at the interlocutory stage.

p. 2
02

Irreparable harm / adequacy of damages

Holding

The application failed the second Giella condition; any harm from interference would be compensable by damages

Reasoning

The court found the second condition in Giella v Cassman Brown not met: any interference by the 1st respondent, who showed no registered title, would harm the applicant on a scale capable of compensation by an award of damages. The application therefore fell to be decided on the balance of convenience.

p. 2
03

Balance of convenience and retention of the caution and restriction

Holding

The injunction should issue but the caution and restriction should remain to protect the 1st respondent's counterclaim on fraud and prevent disposal pending suit

Reasoning

Balancing the parties' interests, the court granted the injunction restraining interference, but kept the caution and restriction in place to avert premature conclusion of the suit and to check the plaintiff's ability to dispose of the land while his title is under challenge.

p. 2

Legal principles established

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  • An order which results in the granting of a major relief claimed in the suit ought not to be granted at an interlocutory stage
  • A registered owner in possession who faces unproved allegations of fraud is entitled to injunctive protection against interference with the land

Court orders

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  1. 1.Temporary injunction granted in terms of prayer number 3 of the amended notice of motion dated 5th September 2018 restraining the 1st and 2nd defendants from interfering with LR No. Kitale Municipality Block 2/Tuwan/2756 pending hearing and determination of the suit
  2. 2.The caution and restriction registered against the title to remain in place pending determination of the suit
  3. 3.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2, 3 and 9; Order 51 Rules 1 and 4
  • Registered Land Act No. 12 of 2012Section 133(1)

Cases cited (2)

  • Stephen Kipkebut T/A Riverside Lodge and Rooms vs. Naftali Ogola
    [2009] EKLR
  • Giella Vs Cassman Brown
Jurisdiction invoked
Order 40 Rules 1, 2, 3 and 9; Order 51 Rules 1 and 4 of the Civil Procedure Rules; Section 133(1) of the Registered Land 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, "Martin Macharia Kamau v Peterson Njoroge & 2 others [2018] KEELC 865 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/865/eng@2018-11-14

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