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ELCDismissedNot stated in the judgment· [2018] KEELC 3132 (KLR)

Mary Telelan Lemita & another v Olive Wairimu Kinyanjui & 2 others [2018] KEELC 3132 (KLR)

Environment and Land Court
24 April 2018
MGMARY M. GITUMBISOSAMSON O. OKONG'O
2,293 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to block a land sale because the family alleging fraud produced no evidence, showing that claims of fraud must be strictly proved.

What this practically means

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Executive summary

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The Plaintiffs, administrators ad litem of the estate of Lemita Ole Kimorua Lelgan (deceased), moved the court by Notice of Motion dated 7th October 2015 seeking a temporary injunction restraining the Defendants from selling, transferring, charging or interfering with parcel Kajiado/Kaputiei North/548 pending trial. They alleged the deceased died intestate in October 2010, that the family remained in occupation, and that the 1st Defendant had fraudulently caused a subdivision and transfer of the property to herself, exploiting the deceased's alleged illiteracy. The 1st Defendant, Olive Wairimu Kinyanjui, countered that she lawfully purchased 5 acres (Kajiado/Kaputiei North/1177) from the deceased in 1988 under written sale agreements, paid in full in the presence of the deceased's wife and sons, obtained Land Control Board consent, signed transfer documents before the lands registrar, and was issued a title deed on 6th August 1997. Applying Giella v Cassman Brown as restated in Nguruman Ltd v Jan Bonde Nielsen, the court (Mary M. Gitumbi, J) held that the Plaintiffs had not established a prima facie case with a probability of success. The 1st Plaintiff had herself admitted the sale agreement; no evidence supported the alleged illiteracy or fraud, which under Section 107 of the Evidence Act and R.G. Patel v Lalji Makanji had to be strictly proved. Under Section 26(1) of the Land Registration Act, the 1st Defendant's title was prima facie indefeasible. The conditions for an injunction being sequential, the court declined to consider irreparable injury or balance of convenience and dismissed the application with costs to the Defendants/Respondents. The judgment was signed on 24th April 2018 and delivered on 3rd May 2018.

Key legal issues

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01

Prima facie case with probability of success for temporary injunction

Holding

The Plaintiffs failed to demonstrate a prima facie case; the 1st Defendant produced a title deed and evidence of the sale transaction which the Plaintiffs did not displace

Reasoning

The 1st Plaintiff admitted the existence of a sale agreement between the deceased and the 1st Defendant for 5 acres. She alleged fraud based on the deceased's alleged illiteracy but produced no evidence of it. The 1st Defendant traced her title to the 1988 purchase, exhibited a title deed, and showed Land Control Board consent and registration. Applying the Evidence Act and R.G. Patel v Lalji Makanji, the fraud claim was not strictly proved. Under Section 26(1) of the Land Registration Act, her title is prima facie indefeasible, so the Plaintiffs' claim stood unchallenged and the first Giella condition failed.

p. 2
02

Whether the court should consider the remaining Giella v Cassman Brown conditions

Holding

No; the conditions are sequential and failure on the first condition disposes of the application

Reasoning

Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society and Nguruman Ltd v Jan Bonde Nielsen, the court held that the Giella conditions are sequential: only if the applicant establishes a prima facie case with probability of success does the court move to irreparable injury and balance of convenience. Having found no prima facie case, the application was necessarily dismissed without considering the other limbs.

p. 3

Legal principles established

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  • Allegations of fraud must be strictly proved; something more than a balance of probabilities is required
  • Where an applicant fails to establish a prima facie case, the other Giella v Cassman Brown conditions need not be considered
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation or illegal/unprocedural acquisition

Court orders

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  1. 1.The Notice of Motion dated 7th October 2015 seeking a temporary injunction is dismissed
  2. 2.Costs of the application to the Defendants/Respondents

Authorities

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Legislation

  • Evidence ActSection 107
  • Land Registration ActSection 26(1)

Cases cited (6)

  • Giella versus Cassman Brown
    (1973) EA 358
  • Mrao versus First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • Airland Tours & Travels Ltd versus National Industrial Credit Bank
    Milimani High Court Civil Case No. 1234 of 2002
  • R.G. Patel versus Lalji Makanji
    (1957) EA 314
  • Kenya Commercial Finance Co. Ltd versus Afraha Education Society
    (2001) 1 EA 86
  • Nguruman Ltd versus Jan Bonde Nielsen
    (2014) eKLR
Jurisdiction invoked
Not expressly stated; interlocutory application in a suit before the Environment and Land Court

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, "Mary Telelan Lemita & another v Olive Wairimu Kinyanjui & 2 others [2018] KEELC 3132 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3132/eng@2018-05-03

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