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ELCDismissedNotice of Motion dated 23rd October 2017 (suit number not stated in judgment)· [2018] KEELC 2454 (KLR)

Nassir Salim Mbaruk v Fauz Gadim & another [2018] KEELC 2454 (KLR)

Environment and Land Court
18 July 2018
CYC. Yano
1,156 words in judgment
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The bottom line

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Mombasa's Environment and Land Court refused to protect a long-term occupier from eviction because the registered owners' title stood unchallenged.

What this practically means

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Executive summary

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By a Notice of Motion dated 23rd October 2017, the Plaintiff sought an interlocutory injunction restraining the Defendants from evicting him, selling, alienating or interfering with his quiet enjoyment of Plot No. Kilifi/Mtwapa/229 pending the hearing and determination of the suit, plus costs. The Plaintiff deponed that he had occupied and possessed the 2.6-hectare property since 1993, and relied on leaflets allegedly threatening him with eviction. The Defendants, the registered proprietors, opposed the application through a Replying Affidavit sworn by the 2nd Defendant, contending that the Plaintiff was merely a licensee of their late uncle, the property's caretaker, on condition of sharing produce; that the Plaintiff lived in Mzambarauni; and that structures on the land were erected by another person. They supported this with supporting affidavits and a Chief's letter. The application was disposed of by written submissions. Applying the Giella v Cassman Brown principles, the court held that the Defendants' title deed under Section 26(1) of the Land Registration Act was prima facie evidence of absolute and indefeasible ownership, which the Plaintiff had not shown could be challenged for fraud, misrepresentation or illegal acquisition. The Plaintiff's adverse possession claim had to await trial, damages would adequately compensate him, and the balance of convenience favoured the registered owners. The application was dismissed with costs in the cause. Ruling delivered at Mombasa on 18th July 2018 by C. Yano, Judge.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for interlocutory injunction against the registered proprietors

Holding

No; the Defendants' title deed was prima facie evidence of ownership and the Plaintiff did not demonstrate grounds to challenge it, his adverse possession claim awaiting trial

Reasoning

Both parties agreed the suit property was registered in the Defendants' names, who produced their title deed. Under Section 26(1) of the Land Registration Act the title is prima facie evidence of absolute and indefeasible ownership, challengeable only for fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition. The Plaintiff, relying on adverse possession, did not show any such ground at the interlocutory stage, and granting the injunction would effectively decide his untried claim finally.

p. 2
02

Whether damages would be an inadequate remedy and where the balance of convenience lay

Holding

Damages would adequately compensate the Plaintiff as the land's value can be ascertained; the balance of convenience favoured the Defendants as registered owners

Reasoning

Even if a prima facie case existed, the Plaintiff did not demonstrate that damages would not adequately compensate him since the value of the land could be ascertained. The court further found the balance of convenience tilted towards the Defendants, who are the registered proprietors of the suit property and regard it as their land.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence that the named proprietor is absolute and indefeasible owner, challengeable only on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
  • An applicant for an interlocutory injunction must show a prima facie case with probability of success, irreparable damage not compensable by damages, failing which the court decides on the balance of convenience

Court orders

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  1. 1.Notice of Motion dated 23rd October 2017 dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Land Registration ActSection 26(1)

Cases cited (1)

  • Giella – v- Cassman Brown & Co Ltd
    (1973) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property; interlocutory application under the court's inherent powers and 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, "Nassir Salim Mbaruk v Fauz Gadim & another [2018] KEELC 2454 (KLR)", Case Analysis (2018). Notice of Motion dated 23rd October 2017 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2454/eng@2018-07-18

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