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ELCAllowedNotice of motion dated 15th November 2016 (suit relating to Title No. Nairobi/Block 126/184)· [2018] KEELC 1399 (KLR)

William Muthama Hippoh & 6 others v Fabian Otto Kimong & another [2018] KEELC 1399 (KLR)

Environment and Land Court
17 October 2018
LKL. KOMINGOI
1,188 words in judgment
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The bottom line

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Kenya's Environment and Land Court protected homebuyers with valid purchases and developments, stopping the registered owner from evicting them or selling the land during the case.

What this practically means

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Executive summary

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This was a notice of motion dated 15th November 2016 brought by the plaintiffs/applicants under Order 40 rules 1(2) and 2(1) of the Civil Procedure Rules 2010 and Sections 3A and 63(e) of the Civil Procedure Act, seeking interim injunctions restraining the 1st defendant from entering, constructing on, disposing of, transferring or dealing with Title No. Nairobi/Block 126/184, from threatening eviction, and restraining the 2nd defendant from allowing any transaction on the title pending the hearing and determination of the suit. The application was opposed by the 1st defendant, a registered owner relying on Section 26 of the Land Registration Act and Article 40 of the Constitution, who contended that the applicants held only share certificates from a surveyor which confer no ownership and that the purchase price of Kshs 300,000 was refundable. The court framed two issues: whether the application met the Giella vs Cassman Brown threshold, and costs. Applying Giella, Mrao, Njenga vs Njenga, Kenleb Cons and Mary Syevutha Peter, the court found the applicants were innocent purchasers for value who had followed due process, occupied and developed their plots, and that any impropriety was not attributable to them. It held they had established a prima facie case with a probability of success, would suffer irreparable loss not curable in damages, and that the balance of convenience favoured them as occupants. The court granted all the injunctions sought and ordered that costs of the application abide the outcome of the main suit. Judgment was delivered in Nairobi on 17th October 2018 by L. Komingoi J.

Key legal issues

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01

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

Holding

Yes - the applicants are innocent purchasers for value who followed due process in acquiring and developing the plots

Reasoning

The court applied Giella vs Cassman Brown and Mrao Ltd. The applicants bought their plots from a surveyor with authority to subdivide and sell, paid the full purchase price, and occupied and developed the premises. Any impropriety in the title chain was not attributable to them, so they established a prima facie case warranting protection by injunction.

p. 2
02

Irreparable injury and balance of convenience

Holding

Both limbs satisfied in favour of the applicants, who are in occupation and risk losing plots with developments

Reasoning

The 1st defendant is the registered owner, so damages would not adequately compensate the applicants if they lost their developed plots. The balance of convenience tilts towards the applicants as they are in occupation and their developments would be lost if no injunction issued pending trial.

p. 3

Legal principles established

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

Court orders

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  1. 1.Temporary injunction issued against the 1st defendant/respondent from entering, constructing, disposing of, transferring or dealing with Title No. Nairobi/Block 126/184 pending hearing and determination of the suit
  2. 2.Order restraining the 1st defendant/respondent from threatening to evict the plaintiffs/applicants from the suit property until hearing and determination of the suit
  3. 3.Order restraining the 2nd defendant/respondent from allowing any transaction regarding Title No. Nairobi/Block 126/184 pending hearing and determination of the suit
  4. 4.Costs of the application to abide the outcome of the main suit
Jurisdiction invoked
Order 40 rules 1(2) and 2(1) of the Civil Procedure Rules 2010 and Sections 3A and 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, "William Muthama Hippoh & 6 others v Fabian Otto Kimong & another [2018] KEELC 1399 (KLR)", Case Analysis (2018). Notice of motion dated 15th November 2016 (suit relating to Title No. Nairobi/Block 126/184). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1399/eng@2018-10-17

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