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ELCAllowedELC Appeal No. 4 of 2018· [2018] KEELC 2659 (KLR)

Moses Meibako Ngatuny & 2 others v Peipei Ole Mosoiko [2018] KEELC 2659 (KLR)

Environment and Land Court
25 May 2018
MKMohammed Noor Kullow
822 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Narok ruled that courts should not grant injunctions over land titles tainted by serious fraud allegations, because those disputes must be resolved at a full trial.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Narok against an interlocutory ruling of the Kilgoris Principal Magistrate's Court delivered on 13 April 2018, which granted a temporary injunction restraining the appellants from burying the remains of Moseka Daniel Ngatuny on Land Parcel No. Trans Mara/Moita/488 pending the hearing of the respondent's suit. The appellants filed a memorandum of appeal with twelve grounds, contending that the Trial Magistrate erred in finding a prima facie case where the respondent's title had allegedly been nullified, and in finding irreparable loss which was neither pleaded nor proved. The respondent, through counsel, maintained that he had purchased the land and obtained title, that the revocation of his title was procured by collusion between the appellants and Land Registry officials, and that the Registrar had no power to cancel a title. The court framed a single issue: whether the Trial Magistrate properly assessed the Giella v Cassman Brown criteria. It held that an interlocutory injunction could not stand where the applicant's title was subject to serious allegations of fraud and had been revoked, since such issues required interrogation at a full trial; further, the order granted was in substance a permanent injunction that conclusively determined the matter. Applying Kemberi Primary School v Pastro Kemberi Baptist Church, the court allowed the appeal and set aside the order of 13 April 2018, with each party bearing their own costs of the appeal.

Key legal issues

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01

Whether the Trial Magistrate properly applied the Giella v Cassman Brown criteria for a temporary injunction

Holding

The trial court erred in granting a temporary injunction where the respondent's title was allegedly procured by fraud and had been revoked; such issues required determination at a full trial.

Reasoning

The court held that a prima facie case is derived from the pleadings and submissions. Here the respondent's title was alleged to have been obtained by fraud and revoked by the Registrar, meaning the applicant held title 'with a sword of fraud hanging on his neck'. Granting an interlocutory injunction on such a contested factual foundation, effectively concluding the matter, was an error of law.

p. 1
02

Whether the Trial Magistrate granted a permanent injunction at an interlocutory stage

Holding

Yes - though the application sought a temporary injunction, the order granted had the effect of conclusively deciding the matter, which courts should not do at interlocutory stage.

Reasoning

Relying on Kemberi Primary School v Pastro Kemberi Baptist Church, the court held that issues of fact should not be decided at the interlocutory stage. The order issued by the Trial Magistrate went beyond preserving the status quo pending trial and in effect granted a permanent injunction.

p. 2

Legal principles established

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  • A temporary injunction should not be granted where the applicant's title is subject to serious allegations of fraud; such issues must be resolved at a full trial.
  • Courts dealing with applications for injunction should not decide issues of fact at the interlocutory stage but only after hearing evidence.

Court orders

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  1. 1.Appeal allowed
  2. 2.The order of the Senior Resident Magistrate made on 13/4/18 and delivered on 18/4/18 set aside
  3. 3.Each party to bear their own costs of the appeal
On appeal from
Kilgoris Principal Magistrate's Court
Jurisdiction invoked
First appellate jurisdiction over appeals from the magistrates' court in land and environment matters

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, "Moses Meibako Ngatuny & 2 others v Peipei Ole Mosoiko [2018] KEELC 2659 (KLR)", Case Analysis (2018). ELC Appeal No. 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2659/eng@2018-05-25

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