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ELCAllowedNotice of Motion dated 23rd January 2018 (suit pending, Kericho ELC)· [2018] KEELC 3688 (KLR)

Andrew Kiprotich Barsiele v Paul Kiptanui Barmase & 2 others [2018] KEELC 3688 (KLR)

Environment and Land Court
4 May 2018
1,250 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kericho Environment and Land Court protected a registered landowner by freezing a disputed family sub-division until the full case is heard.

What this practically means

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Executive summary

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This is a ruling on the plaintiff's Notice of Motion dated 23rd January 2018 seeking a temporary prohibitory injunction in respect of parcel KERICHO/KIMULOT/413, brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 40 Rule 1 of the Civil Procedure Rules. The plaintiff, Andrew Kiprotich Barsiele, deponed that he purchased the suit property in 1974, has occupied it since 1975, and is its registered proprietor, but that in 2015 his siblings (the defendants) caused it to be sub-divided without his consent into four parcels, and that the lands office was due to visit to ascertain the boundaries of the resultant parcels. The defendants, through Paul Kiptonui Barmase, opposed the application, asserting that the land is family land registered in the plaintiff's name in trust for the siblings; that the plaintiff charged it to Kenya Commercial Bank, defaulted, and the land was sold at auction before a brother refunded the buyer; and that the sub-division is intended to give each sibling a share. Canvassed by written submissions, the sole issue was whether the plaintiff was entitled to a temporary injunction. Applying Giella v Cassman Brown, Mrao v First American Bank and the lower-risk-of-injustice approach, Onyango J found the plaintiff's title deed and official search constituted prima facie evidence of indefeasible ownership under section 22 of the Land Registration Act, noted the plaintiff's occupation was uncontroverted, and held that contested sub-division issues could only be resolved at a full hearing. The balance of convenience tilting in the plaintiff's favour, the court granted a temporary injunction restraining the defendants from entering, trespassing, transferring, surveying or continuing the registration of the resultant parcels pending hearing and determination of the suit, with costs in the cause. Dated, signed and delivered at Kericho on 4th May 2018.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

Yes - the annexed title deed and official search showing the plaintiff as registered proprietor are prima facie evidence of ownership under section 22 of the Land Registration Act; the disputed sub-division can only be resolved at a full hearing, and the plaintiff's occupation is uncontroverted.

Reasoning

The court applied Mrao v First American Bank's definition of a prima facie case and found the plaintiff's title documents satisfied it. Although the defendants allege the land is family land held in trust and has been sub-divided into new parcels, the manner of sub-division is contested and can only be determined at the full hearing, so the plaintiff's registered title carried the day at this interlocutory stage.

p. 2
02

Whether the balance of convenience favours granting the injunction

Holding

Yes - the court was persuaded that the balance of convenience tilts in the plaintiff's favour and granted the temporary injunction preserving the status quo.

Reasoning

Having weighed the pleadings, affidavits, annextures and rival submissions, the court concluded the balance of convenience favoured the plaintiff, restraining the defendants from completing registration of the resultant parcels of the 2016 sub-division or interfering with the plaintiff's occupation pending the full hearing of the suit.

p. 2

Legal principles established

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  • The conditions for granting an interlocutory injunction are those in Giella v Cassman Brown: prima facie case, irreparable injury not adequately compensable in damages, and balance of convenience where in doubt.
  • A certificate of title is prima facie evidence that the person named as proprietor is the absolute and indefeasible owner (section 22, Land Registration Act).
  • On an interlocutory injunction application the court does not make final findings but weighs the relative strength of the parties' cases.

Court orders

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  1. 1.A temporary order of injunction restraining the Defendants/Respondents, their agents, servants, assignees, representatives or nominees from entering into, trespassing onto, transferring, hiring, surveying, continuing with the process of registration of the alleged resultant parcels from the sub-division carried out on 17th January 2016, or in any other manner interfering with the Plaintiff/Applicant's quiet use, occupation and enjoyment of KERICHO/KIMULOT/413 pending the hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure Actsections 1A, 1B, 3A
  • Civil Procedure RulesOrder 40 Rule 1; Order 51 Rule 1
  • Land Registration Actsection 22

Cases cited (5)

  • Giella V Cassman Brown & Company Ltd
    1973 EA 358
  • Amir Suleiman V Amboseli Resort Limited
    (2004) eKLR
  • Films Rover International
    1986 3 All ER 772
  • Mrao V First American Bank of Kenya Limited
    (2003) eKLR
  • Mbuthia Vs Jimba Credit Corporation Ltd
    (1988) KLR 1
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules

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, "Andrew Kiprotich Barsiele v Paul Kiptanui Barmase & 2 others [2018] KEELC 3688 (KLR)", Case Analysis (2018). Notice of Motion dated 23rd January 2018 (suit pending, Kericho ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/3688/eng@2018-05-04

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