Sabina Nyambura Githina & another v Land Registrar, Thika Land Registry & 4 others [2018] KEELC 2819 (KLR)

The Court applied the test for conservatory orders requiring a prima facie case with likelihood of success and real danger of prejudice. The Applicants alleged the 1st Respondent arbitrarily cancelled the title held by Charles Githina Mwangi and issued a new one to the Interested Party; the 1st Respondent did not deny those averments. As registered proprietor, Real Capital Ltd could lawfully deal with and dispose of the land under Section 24 of the Land Registration Act, which would prejudice the Petitioners before trial.

The Court found the ownership dispute over Ruiru/Ruiru East Block 7/84 is a civil dispute properly resolvable under the Environment and Land Court Act 2011. No court had determined whether Charles Githina Mwangi obtained good title, nor pronounced Real Capital Ltd the rightful proprietor. Charging the 2nd Petitioner gave Real Capital Ltd an advantage in the civil dispute, invoking the Ganijee principle that criminal law must not be brandished to further private civil ends.

Applying the Mukisa Biscuits definition, the Court held that the grounds raised by the Interested Party, including alleged lack of constitutional substance, improper invocation of jurisdiction, absence of a 5th Respondent and lack of authority of the deponent, were matters requiring evidence and determination in the main Petition, not points of law capable of disposing of the suit at a preliminary stage.