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ELCDismissedNot stated in the judgment· [2018] KEELC 2232 (KLR)

Samuel Kipkemboi Chesire v John Kibet Nge [2018] KEELC 2232 (KLR)

Environment and Land Court
31 July 2018
DOD. O. Ohungo
1,411 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Without a written, signed contract, even decades of land occupation may not secure court protection in Kenya.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (Ohungo J) on the plaintiff's Notice of Motion dated 7th June 2018 in a land dispute over LR. No. Katigoi (Tall Trees) Plot No. 54. The plaintiff sought a temporary injunction restraining the defendant from evicting him, trespassing on, sub-dividing, advertising for sale or interfering with the suit property pending trial, and an order compelling the Registrar of Lands to issue a title in his favour. He asserted that he purchased the plot in 1996 from an entity called A.D.C Tall Trees for Kshs.32,500, paid a deposit of Kshs.15,000, but never collected a receipt or allotment letter, and had occupied and developed the land since then, building a home. The defendant, though served, filed no response and did not attend court, so the application was unopposed. The court nonetheless dismissed prayer 4 (the mandatory order against the Registrar) because the land registrar was not a party and could not be ordered without being heard, and because the order was final relief that had to await trial. Applying Giella v Cassman Brown as refined in Nguruman Limited v Jan Bonde Nielsen, the court held the plaintiff had no written, signed and attested contract as required by section 3(3) of the Law of Contract Act, no evidence of payment, and no evidence that the alleged vendor company existed or could pass good title. He therefore failed to establish a prima facie case, and the remaining limbs of the test fell away. The entire application was dismissed with no order on costs.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success for purposes of an interlocutory injunction

Holding

He did not; he had no written evidence of the contract of sale, of payment, or of the existence and capacity of the alleged vendor company, and so could not show his case was more likely than not to succeed

Reasoning

The plaintiff claimed he purchased the suit property in 1996 from ADC Tall Trees but produced no receipt, allotment letter or written contract. Section 3(3) of the Law of Contract Act requires written, signed and attested contracts for dispositions of interests in land. There was also no evidence the alleged vendor company existed, owned the property, or could pass good title. The application, though unopposed, failed the first Giella test, so the remaining limbs were not considered.

p. 2
02

Whether the court could order the Registrar of Lands to issue a title to the plaintiff at the interlocutory stage

Holding

No; the Registrar is a non-party entitled to be heard, and the order sought is final relief that must await the hearing of the main suit

Reasoning

Prayer 4 mirrored prayer 2 of the plaint seeking a mandatory order compelling the Registrar of Lands to issue a title. Since the Registrar was not joined as a party, granting such an order would violate his right to be heard. Further, the order was final in character and could not be granted on a Notice of Motion before trial. Prayer 4 was accordingly dismissed.

p. 1

Legal principles established

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  • No suit may be brought upon a contract for the disposition of an interest in land unless the contract is in writing, signed by all parties and attested by a witness present at signing
  • 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
  • Orders cannot be issued against a non-party without giving that party an opportunity to be heard

Court orders

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  1. 1.Prayer 4 of the Notice of Motion (compelling the Registrar of Lands to issue a title) dismissed
  2. 2.The Notice of Motion dated 7th June 2018 dismissed in its entirety
  3. 3.No order on costs

Authorities

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Legislation

  • Law of Contract ActSection 3(3)

Cases cited (3)

  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land (interlocutory application in a land suit); no specific constitutional or statutory provision invoked in the judgment

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 Kipkemboi Chesire v John Kibet Nge [2018] KEELC 2232 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2232/eng@2018-07-31

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