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ELCAllowedNot stated in the judgment (application dated 4th July 2017)· [2018] KEELC 1497 (KLR)

Samuel Kahindi Kirao & 5 others v Mwanaidi Islam Bakari & another [2018] KEELC 1497 (KLR)

Environment and Land Court
11 October 2018
1,019 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that someone who bought and occupied land for 20 years without a title deed can still get a court order blocking trespassers.

What this practically means

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Executive summary

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By a notice of application dated 4th July 2017, the Plaintiff Martin Kazungu Konde sought an interlocutory injunction restraining the Defendants and their agents from trespassing on his parcel of land known as 1066, Matsangoni Kilifi/Roka/Settlement Scheme, measuring approximately 12 acres, pending the hearing and determination of the suit. He asserted that the Defendants invaded the land in March 2006 (with the invasion in 2016 referenced in the evidence) and were sub-dividing it for sale, causing him irreparable loss. The Defendants opposed through Grounds of Opposition filed on 12th July 2017, contending that the application was vexatious and an abuse of process, that the Plaintiff had not produced a title deed or search, that the land was agricultural land subject to the Settlement Fund Trustees scheme and Land Control Board consent, and that the Plaintiff's delay of over 20 years and residence abroad meant he would suffer no loss. The court applied the well-settled Giella v Cassman Brown test for interlocutory injunctions. It found that the Plaintiff relied on a 1989 sale agreement under which his late father purchased the plot, evidence of payment of arrears demanded by the Settlement Fund Trustees, and possession since 1990. The Defendants did not deny invading the land. The court held that although the land was not yet registered in the Plaintiff's name, he had all the rights of a registered owner, and the Defendants could not rely on his lack of title to justify their invasion. Satisfied that a prima facie case with probability of success had been made out, the court allowed the application with costs on 11th October 2018.

Key legal issues

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01

Whether an applicant who has not yet obtained title to the land can establish a prima facie case for an interlocutory injunction

Holding

Yes - the Plaintiff, who purchased the land from his father and has had control of it for over 20 years, has all the rights of a registered owner even without registration, and the Defendants' failure-to-have-title objection cannot justify their invasion of the land

Reasoning

The court made a preliminary assessment of the Plaintiff's case in the plaint and supporting affidavit against the Defendants' grounds of opposition. The Plaintiff relied on a 1989 sale agreement for the 12-acre plot, a demand letter from the Settlement Fund Trustees, and evidence of payment and possession since 1990. The Defendants did not deny invading the land in 2016. Their argument that the Plaintiff, residing abroad, would suffer no loss was rejected as making no sense. Possession and control for over 20 years sufficed for a prima facie case despite the absence of registration.

p. 2
02

Whether the application satisfied the Giella test for an interlocutory injunction

Holding

Yes - the Plaintiff made out a case with a probability of success at trial and the application was allowed

Reasoning

Applying the Giella v Cassman Brown principles, the court found the Plaintiff demonstrated a prima facie case with probability of success based on the sale agreement, payment of the Settlement Fund Trustees' arrears and long possession. The Defendants' failure to deny the 2016 invasion undermined their opposition. On this material the court was satisfied the application had merit and allowed it, restraining the Defendants from trespassing pending the hearing and determination of the suit.

p. 3

Legal principles established

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  • An unregistered purchaser in possession has the rights of a registered owner, and failure to obtain the title deed cannot justify invasion of the land by third parties
  • The settled test for interlocutory injunctions in East Africa: prima facie case with probability of success, irreparable injury not adequately compensable by damages, and balance of convenience

Court orders

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  1. 1.The Plaintiff's application dated 4th July 2017 is allowed with costs, granting the injunction restraining the Defendants from trespassing on land known as 1066, Matsangoni Kilifi/Roka/Settlement Scheme pending the hearing and determination of the suit

Authorities

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Legislation

  • Land Control Act (implied by Land Control Board consent objection)consent requirements for agricultural land transfers
  • Settlement Fund Trustees scheme (settlement/loan scheme)discharge of title under the scheme

Cases cited (1)

  • Giella –vs- Cassman Brown & Company Ltd
    (1973) EA
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (application for interlocutory injunction in a pending suit)

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, "Samuel Kahindi Kirao & 5 others v Mwanaidi Islam Bakari & another [2018] KEELC 1497 (KLR)", Case Analysis (2018). Not stated in the judgment (application dated 4th July 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1497/eng@2018-10-11

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