Susan Wambui Gitonga v Registered Trustee PCEA Church Bibilion Limuru & 3 others [2018] KEELC 4059 (KLR)
The bottom line
#A Kenyan court confirmed that a certificate of title beats an old sale agreement, ordering church-linked occupants to remove their structures within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the registered proprietor established a prima facie case
Yes - the Plaintiff is the registered proprietor holding a certificate of lease, her title was unchallenged on fraud or illegality grounds, and she is entitled to quiet enjoyment pending trial
The Plaintiff was registered on 8th October 2010 as purchaser under a 2005 sale agreement. Section 26(1) of the Land Registration Act makes the certificate of title prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud, misrepresentation, illegality or corrupt scheme. The Defendants' 2002 sale agreement and adverse possession claim cannot override the certificate of title and remain a disputed fact for trial. A prima facie case with probability of success was therefore established.
Whether mandatory orders of eviction and demolition should issue at the interlocutory stage
No mandatory eviction order issued, but the Defendants were directed to voluntarily demolish their structures within 30 days, failing which the OCS Mwihoko Police Station to enforce
Citing Kenya Breweries Ltd v Washington O. Okeyo, mandatory injunctions on interlocutory applications require special circumstances. The adverse possession defence is a disputed fact resolvable only at trial. The court therefore crafted an order requiring voluntary removal of structures within 30 days, with police enforcement only upon default, preserving the status quo while protecting the registered proprietor's rights.
Legal principles established
#- A sale agreement cannot supersede a certificate of title or lease; the registered proprietor is prima facie the absolute and indefeasible owner under Section 26(1) of the Land Registration Act
- Mandatory injunctions at the interlocutory stage are granted only in special or exceptional circumstances
- The conditions for an interlocutory injunction are sequential; the second condition is addressed only if the first is satisfied
- In an injunction application the court should not delve into substantive issues or make final findings on disputed facts
Court orders
#- 1.Prohibitory injunction restraining the Defendants, their agents and servants from selling, dealing, entering, constructing or erecting structures on the suit property Ruiru/Kiu Block 7/161 or interfering with the Plaintiff's quiet possession pending hearing and determination of the suit (prayer 1)
- 2.Order that the Defendants voluntarily remove and/or demolish any structures erected on the suit property within 30 days and cease further construction until the suit is heard and determined (prayer 3)
- 3.Direction that upon failure to voluntarily demolish within the 30 days, the OCS Mwihoko Police Station to ensure compliance with the orders
- 4.Parties directed to comply with Order 11 within 45 days, then take a date for pre-trial directions before the Deputy Registrar and set down the main suit for hearing
- 5.Costs of the application to the Plaintiff/Applicant
- Jurisdiction invoked
- Inherent power of the Court under Section 3A of the Civil Procedure Act; Land Registration Act provisions on proprietary rights
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Susan Wambui Gitonga v Registered Trustee PCEA Church Bibilion Limuru & 3 others [2018] KEELC 4059 (KLR)", Case Analysis (2018). Notice of Motion dated 17th March 2017 (suit over Ruiru/Kiu Block 7/161). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4059/eng@2018-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.