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ELCAllowedNotice of Motion dated 23rd October 2017· [2018] KEELC 2212 (KLR)

Jackson H Wandera v Benard Soi [2018] KEELC 2212 (KLR)

Environment and Land Court
13 July 2018
DOD. O. Ohungo
832 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 blocked a man from farming land he bought informally, confirming that a registered title beats an unregistered sale agreement.

What this practically means

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Executive summary

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The plaintiff, registered proprietor of Nakuru/Saino Settlement Scheme/1854 since 12th October 2005, moved the court by Notice of Motion dated 23rd October 2017 seeking an interlocutory injunction restraining the defendant from entering, trespassing, cultivating or interfering with his quiet possession of the suit property pending the hearing and determination of the suit. He exhibited a title deed and certified green card confirming his registration and deposed that in September 2017 he found the defendant had planted crops on part of the land. The defendant opposed the application through a replying affidavit, claiming he bought the property from one Daniel Kipkemoi Ronoh under a sale agreement dated 17th September 2014 and had farmed it without interference, describing himself as a purchaser for value. The application was canvassed by written submissions. Applying the Giella v Cassman Brown test as clarified in Nguruman Limited v Jan Bonde Nielsen, the court held that the plaintiff had established a prima facie case with a probability of success: the register, as certified on 13th October 2017, showed him as registered proprietor, while the defendant's vendor purportedly acquired registration only in 2008, after the plaintiff, and the defendant offered no explanation for not yet being registered. The court also found damages inadequate compensation. On 13th July 2018 the court granted the injunction sought and awarded costs of the application to the plaintiff.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

The plaintiff, as registered proprietor since 2005 with a certified green card confirming his registration, established a prima facie case with a probability of success against a defendant claiming under a 2014 sale agreement from a vendor who could not have validly passed title

Reasoning

The plaintiff exhibited a title deed and certified green card showing registration on 12th October 2005. The defendant's claim rested on a sale agreement dated 17th September 2014 with Daniel Kipkemoi Ronoh, who allegedly became registered proprietor only on 9th April 2008, after the plaintiff. The defendant also could not explain why he had not become registered proprietor. Applying Giella, the court found a prima facie case and held damages inadequate.

p. 2

Legal principles established

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  • In an interlocutory injunction application, the Giella conditions must be satisfied sequentially and if a prima facie case is not established, irreparable injury and balance of convenience need no consideration
  • A registered proprietor is entitled to the rights and privileges under sections 24 and 25 of the Land Registration Act

Court orders

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  1. 1.An injunction restraining the defendant/respondent by himself, his agents, servants or representatives from entering, trespassing upon, cultivating or in any way interfering with the plaintiff's quiet possession of L.R Nakuru/Saino Settlement Scheme/1854 pending the hearing and determination of the suit
  2. 2.Costs of the application awarded to the plaintiff

Authorities

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Legislation

  • 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
Original civil suit jurisdiction (injunction application pending hearing of 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, "Jackson H Wandera v Benard Soi [2018] KEELC 2212 (KLR)", Case Analysis (2018). Notice of Motion dated 23rd October 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2212/eng@2018-07-13

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