Amos Mutungi & 5 others v Basil Criticos & 5 others [2018] KEELC 2640 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the preliminary objection against the Plaintiffs' locus standi merited
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
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.
Whether the Plaintiffs established a prima facie case for temporary injunction
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
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.
Whether irreparable loss and balance of convenience favoured the injunction
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
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.
Legal principles established
#- 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
#- 1.The Notice of Motion dated 21st July, 2017 is dismissed
- 2.The costs of the application do abide the outcome of the main suit
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Basil Riticos v Attorney General & 7 others [2020] KEELC 3972 (KLR)[2020] KEELC 3972 (KLR)12 Mar 2020
Cite this brief
#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.