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ELCPartially AllowedNotice of Motion dated 19th June 2017· [2018] KEELC 1614 (KLR)

Felix Kimutai v Pauline C. Lerayan [2018] KEELC 1614 (KLR)

Environment and Land Court
27 September 2018
DOD. O. Ohungo
1,392 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner with a title deed won protection for his land but could not evict the family who had lived on it for 18 years.

What this practically means

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Executive summary

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By Notice of Motion dated 19th June 2017 under Order 40 rules 1, 2, 3 and 9 of the Civil Procedure Rules, the plaintiff, the registered proprietor of LR No. Miti Mingi/Mbaruk Block 3/4118 (Barut) since a 2014 title, sought an injunction restraining the defendant from invading, trespassing, grazing, cultivating or interfering with his possession, plus an order directing the OCS Kaptembwo Police Post to ensure compliance. The defendant opposed, deposing that she purchased the property from the late Zakayo Kiptoo Cheruiyot on 1st February 2000, paid the full price, settled on it, built a permanent house, and has occupied it for about 18 years; she suggested the plaintiff's title was forged since the vendor died in April 2014 before the transfer was completed. The plaintiff filed no further affidavit to challenge the position on the ground. Applying Giella v Cassman Brown as reinforced in Nguruman Limited v Jan Bonde Nielsen, the court found the plaintiff had established a prima facie case as registered proprietor under Sections 24 and 25 of the Land Registration Act and that damages would not adequately compensate him. However, because the defendant's unchallenged occupation would result in her dispossession if the orders were granted mechanically, the court fashioned a preservation-focused injunction restraining the defendant from selling, leasing, transferring or carrying out any further construction on the suit property pending hearing and determination of the suit. The police-compliance order was refused. Costs were awarded to the plaintiff.

Key legal issues

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01

Entitlement of a registered proprietor to an interlocutory injunction against a party in long occupation

Holding

The plaintiff established a prima facie case as registered proprietor and that damages would not adequately compensate him, but the injunction granted was limited to preserving the property (no sale, lease, transfer or further construction), not evicting the defendant.

Reasoning

Sections 24 and 25 of the Land Registration Act vest absolute ownership in the registered proprietor, so the plaintiff's title must be upheld until validly cancelled. However, the defendant's assertion that she bought the land in 2000, built a permanent house and has lived there for about 18 years was unchallenged, as the plaintiff filed no further affidavit. Allowing the application mechanically would dispossess the defendant before trial, which would be manifestly unjust at the interlocutory stage.

p. 3

Legal principles established

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  • The three Giella conditions are separate, distinct and sequential hurdles; if a prima facie case is not established, irreparable injury and balance of convenience need no consideration
  • At the interlocutory stage, an injunction should preserve the suit property rather than effect an eviction of a party in long occupation

Court orders

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  1. 1.An injunction restraining the defendant whether by herself, agents and/or servants from selling, leasing, transferring or carrying out any further constructions on LR No. Miti Mingi/Mbaruk Block 3/4118 (Barut) pending hearing and determination of this case
  2. 2.Costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2, 3 and 9
  • Land Registration ActSections 24 and 25

Cases cited (2)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Order 40 rules 1, 2, 3 and 9 of the Civil Procedure Rules

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, "Felix Kimutai v Pauline C. Lerayan [2018] KEELC 1614 (KLR)", Case Analysis (2018). Notice of Motion dated 19th June 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1614/eng@2018-09-27

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