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ELCPartially AllowedNotice of Motion dated 18th January 2017 (suit over land parcel Loc.16/Ndungu Chege/1763)· [2018] KEELC 2834 (KLR)

Mary Njeri Mbugua v Alice Muthoni [2018] KEELC 2834 (KLR)

Environment and Land Court
19 June 2018
2,315 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court confirmed that a registered landowner with an unchallenged title can stop anyone building on or selling their land.

What this practically means

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Executive summary

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By Notice of Motion dated 18th January 2017, Mary Njeri Mbugua, registered proprietor of land parcel Loc.16/Ndungu Chege/1763, sought a temporary injunction restraining Alice Muthoni from selling, alienating, disposing of or interfering with the suit property pending trial. The Applicant deponed that she had enjoyed quiet possession until around 28th November 2016 when she found structures being erected on the land by the Respondent. The Respondent, surviving wife and personal representative of the late Francis Mbugua Kagutha, opposed the application, contending that her co-wife Virginia Wambui Mbugua had fraudulently transferred the suit property to herself in breach of an inhibition order issued in Thika Chief Magistrate's Civil Suit No.801 of 2005, that the property was matrimonial property, and that she was a beneficiary of the deceased's estate. The Applicant relied on Section 26(1) of the Land Registration Act and Olympic Sports House Ltd v School Equipment Centre Ltd; the Respondent urged the court to await viva voce evidence. Applying the Giella v Cassman Brown principles, the court held that the Applicant, registered on 15th July 2015 following confirmation of a grant in Succession Cause No.2155/2011, was prima facie the absolute and indefeasible owner with an unchallenged title; the Respondent had not shown the fate of the alleged inhibition order; and the Respondent's unchallenged encroachment and construction amounted to wastage warranting an injunction under Order 40 Rule 1 of the Civil Procedure Rules. Damages would not suffice for a crystallised right. The court declined to decide the balance of convenience, being in no doubt. The application was allowed entirely in terms of prayer (b), with costs to the Applicant.

Key legal issues

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01

Whether the Applicant had a prima facie case with probability of success

Holding

Yes - as registered owner holding an unchallenged certificate of title obtained through transmission upon a confirmed grant, she is prima facie the absolute and indefeasible owner, and the Respondent's encroachment amounts to wastage

Reasoning

The Applicant was registered as proprietor on 15th July 2015 following confirmation of a grant in Succession Cause No.2155/2011. Nobody objected to the grant or its confirmation. Under Sections 24(a), 25(1) and 26(1) of the Land Registration Act her title is indefeasible absent fraud, misrepresentation or corrupt scheme. The Respondent did not dispute the encroachment, and construction without permission would waste the land, satisfying the first Giella criterion.

p. 3
02

Whether damages would adequately compensate the Applicant

Holding

No - following Olympic Sports House Ltd v School Equipment Centre Ltd, a crystallised right protectable by injunction cannot be substituted with damages

Reasoning

The court adopted the Olympic Sports House holding that damages is not an automatic or substitute remedy where a crystallised right can be protected by injunction. Since the Applicant held an indefeasible title, her crystallised right was properly protected by an injunction rather than left to a later award of damages.

p. 3
03

Whether the Respondent's reliance on an inhibition order in Thika CMCC No.801 of 2005 defeated the application

Holding

No - the Respondent did not show the outcome of the interparties hearing or the conclusion of that suit, so the court could not hold with certainty that a valid inhibition order over the suit property existed

Reasoning

The Respondent alleged that the deceased husband had obtained an injunction/inhibition order over parcels 1762, 1763 and 1764 in Civil Suit No.801 of 2005, issued ex parte on 10th June 2008. However, she did not inform the court of the outcome of the interparties hearing or whether the main suit was concluded or its determination, so the court could not find a valid subsisting order inhibiting dealings with the suit property.

p. 3
04

Whether the balance of convenience arose for determination

Holding

The court declined to decide this limb, being in no doubt because the Applicant possessed a valid unchallenged title and the Respondent's limited letters of administration over the father's estate cast no doubt, the suit property not having belonged to the deceased at death

Reasoning

The court held it was not in doubt at all: the Applicant's title derived from a confirmed, unchallenged grant. The Respondent held only limited letters of administration to the estate of Francis Mbugua Kagutha, obtained after this suit was filed, and at his death the suit property stood in the name of Virginia Wambui Mbugua with no evidence he had challenged her proprietorship. The third Giella limb therefore did not require determination.

p. 3

Legal principles established

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  • A registered proprietor whose title is unchallenged is prima facie the absolute and indefeasible owner under Section 26(1) of the Land Registration Act, and such proprietorship can only be challenged on grounds of fraud, misrepresentation or corrupt scheme
  • Encroachment and unauthorised construction on registered land constitutes wastage which warrants a temporary injunction under Order 40 Rule 1
  • A party cannot be condemned to take damages in lieu of a crystallised right protectable by injunction

Court orders

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  1. 1.A temporary injunction restraining the Defendant/Respondent, her agents, servants, workmen or anyone claiming through her from selling, alienating, disposing of or in any way interfering with land parcel No.Loc.16/Ndungu Chege/1763 until the case is heard and determined or until further orders of the court
  2. 2.Costs of the application to the Applicant

Authorities

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Legislation

  • Land Registration ActSection 26(1)
  • Land Registration ActSection 24(a)
  • Land Registration ActSection 25(1)
  • Civil Procedure RulesOrder 40 Rules 1(A) & (B)

Cases cited (2)

  • Olympic Sports House Ltd Vs School Equipment Centre Ltd
    (2012) eKLR
  • Giella Vs Cassman Brown & Co. Ltd
    1973 EA 358
Jurisdiction invoked
Order 40 Rules 1(A) & (B) of the Civil Procedure Rules (temporary injunction jurisdiction)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "Mary Njeri Mbugua v Alice Muthoni [2018] KEELC 2834 (KLR)", Case Analysis (2018). Notice of Motion dated 18th January 2017 (suit over land parcel Loc.16/Ndungu Chege/1763). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2834/eng@2018-06-19

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