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ELCDismissedNotice of Motion dated 21st July, 2017 (suit pending before the Environment and Land Court, Mombasa; references HCCC No. 446 of 2009)· [2018] KEELC 2640 (KLR)

Amos Mutungi & 5 others v Basil Criticos & 5 others [2018] KEELC 2640 (KLR)

Environment and Land Court
26 April 2018
2,646 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~11 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Mombasa dismissed residents' bid to block sale of two plots because they proved no valid purchase or legal right over the land.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 21st July 2017 by Plaintiffs who are residents of Plot Nos. LR. 6731 and 6732, seeking temporary injunctions and inhibition orders restraining the 1st, 2nd and 3rd Defendants from consolidating, trespassing on, selling, subdividing or transferring the plots, and an order compelling the 3rd Defendant to disclose monies received in respect of the 2008-2009 sales. The application was opposed through a preliminary objection, grounds of opposition and replying affidavits, and was disposed of by written submissions. The court framed three issues: the preliminary objection, the injunction threshold, and costs. Applying Mukisa Biscuits, the court upheld the objection as a pure point of law, finding the Plaintiffs lacked locus standi to challenge the genuineness of the 1st Defendant's title or the mode of transfer, and had failed to prove their purchases. On the merits, applying Giella v Cassman Brown, Mrao and Kenleb Cons, the court held the Plaintiffs failed to demonstrate a prima facie case: the 2008/2009 sale transactions were not completed, no Land Control Board consent was obtained so the agreements would be void, and the 1st Defendant's registered title was protected under Section 26(1) of the Land Registration Act. The 2nd Defendant had no proprietary interest and was not party to the agreements. No irreparable injury was shown and the balance of convenience favoured the 1st and 3rd Defendants, there being a valid decree in HCCC No. 446 of 2009; the Plaintiffs should have sought joinder in that suit. The application was dismissed with costs abiding the outcome of the main suit.

Key legal issues

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01

Whether the preliminary objection against the Plaintiffs' locus standi merited

Holding

The objection was a proper preliminary objection and the Plaintiffs lacked locus standi to challenge the genuineness of the 1st Defendant's title or the mode of transfer, though the court went on to consider the merits

Reasoning

Applying Mukisa Biscuits, the court found the objection raised a pure point of law. It held the Plaintiffs could not challenge the legality or genuineness of the 1st Defendant's title, could not litigate on the mode of transfer between the respondents, and had failed to prove they purchased the plots. Nonetheless the court proceeded to consider the merits of the injunction application.

02

Whether the Plaintiffs established a prima facie case for temporary injunction

Holding

No prima facie case was established; the transactions of 2008/2009 were incomplete, Land Control Board consent was not obtained rendering the agreements void, and the 1st Defendant's title could not be challenged on the material presented

Reasoning

The court found the 1st Defendant is the registered owner whose title enjoys statutory protection under Section 26(1) of the Land Registration Act. The correspondences showed the sale transactions were never completed, no Land Control Board consent was obtained so the agreements would be void, and the purchasers had been offered an opportunity to purchase under fresh terms. The 2nd Defendant had no proprietary interest and was not party to the agreements.

p. 4
03

Whether irreparable loss and balance of convenience favoured the injunction

Holding

No irreparable injury was demonstrated and the balance of convenience favoured the 1st and 3rd Defendants, there being a valid court order (in HCCC No. 446 of 2009) detailing how the suit land should be dealt with

Reasoning

Relying on Giella v Cassman Brown and Paul Gitonga Wanjau, the court held the applicants bore the burden of showing greater inconvenience if the injunction was refused, and failed to discharge it. A valid decree existed requiring eviction of the Plaintiffs, and the Plaintiffs' remedy was to have sought joinder in HCCC No. 446 of 2009 rather than resist execution by injunction.

p. 6

Legal principles established

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  • A certificate of title is prima facie evidence of proprietorship and may be challenged only on grounds of fraud, misrepresentation, or illegality, unprocedural acquisition or corrupt scheme
  • A preliminary objection raises a pure point of law argued on the assumption that all facts pleaded by the other side are correct
  • An applicant for an interlocutory injunction must make full and frank disclosure and show a legal or equitable right requiring protection
  • The burden of proving that the balance of convenience favours the applicant lies on the applicant

Court orders

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  1. 1.The Notice of Motion dated 21st July, 2017 is dismissed
  2. 2.The costs of the application do abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A; Order 40 Rules 1, 2
  • Land ActSection 68
  • Fair Administrative Action ActSections 5 and 6
  • Agricultural Finance Actnot specified
  • Land Control ActSections 6-8
  • Land Registration Act, 2012Section 26(1)

Cases cited (10)

  • Giella –versus- Cassman Brown And Company Limited
    (1973) EA 358
  • Kariuki –versus- Kariuki
    (1983) KLR 225
  • Mrao Limited –versus- First American Bank of Kenya Limited And 2 Others
    (2003) KLR 125
  • Joshua Selelo –versus- Esther Kanini & Another
    Nairobi ELC No. 1 of 2013
  • Panari Enterprises Limited –versus- Mrs. Lijoodi & Others
    Nairobi ELC No. 779 of 2013
  • Nyayo Embakasi Residents Association –versus- National Social Security Fund & Another
    Nairobi ELC No. 1034 of 2014
  • East African Development Bank –versus- Hyundai Motors Kenya Limited
    Nairobi, Court of Appeal Civil Appeal No. 194 of 2004
  • Mukisa Biscuits Company Limited –versus- West End Distributors Limited
    (1969) EA 696
  • Kenleb Cons Limited –versus- New Gatitu Service Station & Another
  • Paul Gitonga Wanjau –versus- Gathuti Tea Factory Company Limited & 2 Others
    (2016) eKLR
Jurisdiction invoked
Sections 1A, 3A and Order 40 Rules 1, 2 of the Civil Procedure Act; Section 68 of the Land Act; Sections 5 and 6 of the Fair Administrative Action Act, 2015

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Amos Mutungi & 5 others v Basil Criticos & 5 others [2018] KEELC 2640 (KLR)", Case Analysis (2018). Notice of Motion dated 21st July, 2017 (suit pending before the Environment and Land Court, Mombasa; references HCCC No. 446 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2640/eng@2018-04-12

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