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ELCDismissedNot stated in judgment (Notice of Motion dated 25th April 2017)· [2018] KEELC 4138 (KLR)

James Mwaniki Mukua & another v Mark Mugekenyi Kariuki & 2 others [2018] KEELC 4138 (KLR)

Environment and Land Court
9 March 2018
3,191 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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A registered Kenyan landowner was denied an injunction because the buyers' long occupation and disputed fraud claims will only be resolved at trial.

What this practically means

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Executive summary

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This ruling by L. Gacheru J of the Environment and Land Court at Thika determined the Plaintiffs' Notice of Motion dated 25th April 2017 seeking an interim injunction restraining the Defendants from alienating or interfering with land parcel Limuru/Kamirithu/3214, a subdivision of Limuru/Kamirithu/596 from the estate of Joshua Mbira Githahu. The 1st Plaintiff, registered proprietor since 2016, complained that the Defendants, who occupy the land with permanent structures housing a nursery school and church, refused to vacate and interfered with his access. The Defendants countered that they purchased the suit property from the 2nd Plaintiff in 1999 (Ksh 400,000, with Ksh 300,000 paid) and that the sale to the 1st Plaintiff was fraudulent and effected behind their backs. The court struck out the 2nd Plaintiff's undated, uncommissioned further affidavit as defective under the Oaths and Statutory Declaration Act. Applying the Giella v Cassman Brown criteria, the court held the Applicants failed to establish a prima facie case because the competing claims of sale and fraud raise disputed facts resolvable only at trial, and that any loss to the Applicants is compensable in damages given the small, definable parcel. The balance of convenience favoured maintaining the status quo. The application was dismissed with costs to the Defendants, with a status quo order restraining both sides from alienating the property and directions for Order 11 compliance within 45 days ahead of pre-trial directions and full trial.

Key legal issues

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01

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

Holding

They did not; though the 1st Plaintiff holds a registered title, the Defendants dispute its acquisition on grounds of fraud and misrepresentation, raising disputed facts that can only be resolved at trial

Reasoning

The court accepted the 1st Plaintiff as registered proprietor under section 26(1) of the Land Registration Act, but noted that title may be impugned for fraud or misrepresentation. The Defendants alleged the 2nd Plaintiff sold the property to them, which the 2nd Plaintiff denied. These competing claims of fraud and non-disclosure are disputed facts incapable of resolution on affidavit evidence and require cross-examination at full trial.

p. 4
02

Whether the Applicants would suffer irreparable loss not compensable in damages

Holding

They would not; the suit land is small, defined and quantifiable in monetary terms, whereas the Defendants, in occupation since 1999 with a school and church, would suffer irreparable loss if injuncted

Reasoning

The court found the 1st Plaintiff's portion is about 0.07Ha, identifiable and payable in monetary terms. The Defendants have permanent structures housing a nursery school and church and have occupied since 1999. Refusing the injunction causes no irreparable harm to the Applicants, but granting it would force the Defendants to close the school and church, losses not compensable in damages.

p. 4
03

Where the balance of convenience lies

Holding

The balance of convenience favours maintaining the status quo, namely Defendants in possession and occupation, with no party alienating the property pending trial

Reasoning

The court held it was not in doubt, but if deciding on balance of convenience, the status quo existing before the 1st Plaintiff's purchase should be maintained. The Defendants were then in possession and occupation. Following Wambui Ougo, where facts conflict seriously, the status quo should be preserved until trial, coupled with mutual restraint against alienation, charging or transfer.

p. 4
04

Whether the further affidavit of the 2nd Plaintiff could stand

Holding

It was defective, being undated, unsigned and uncommissioned, and was struck out and expunged from the record

Reasoning

The further affidavit filed on 16th October 2017 was neither dated nor commissioned, contrary to the Oaths and Statutory Declaration Act, Cap 15. The court held the defect could not be cured by Article 159(2)(d) of the Constitution because it contravenes clear provisions of law, and accordingly expunged the affidavit from the court records.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, but may be challenged on grounds of fraud, misrepresentation, illegality or corrupt acquisition under section 26(1) of the Land Registration Act
  • Where there are serious conflicts of facts at the interlocutory stage, the court should maintain the status quo until trial

Court orders

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  1. 1.The Notice of Motion application dated 25th April 2017 is dismissed entirely with costs to the Defendants/Respondents
  2. 2.An order of status quo: the Defendants to remain in possession and occupation of the suit property
  3. 3.None of the parties to sell, alienate, charge or transfer the suit property to any third parties until the matter is heard and determined
  4. 4.Parties to comply with Order 11 within 45 days and set the matter down for pre-trial directions before the Deputy Registrar

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 3A, 63(e); Order 5 rule (1) (referred to as Cap 21)
  • Civil Procedure Rules 2010Order 40; Order 11
  • Land Registration ActSection 26(1), 26(1)(a) & (b)
  • Oaths and Statutory Declaration ActCap 15
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (5)

  • Edwin Kamau Muniu Vs Barclays Bank of Kenya Ltd
    Nairobi HCCC No. 1118 of 2002
  • Giella vs Cassman Brown & Co. Ltd
    1973 EA 358
  • Mrao Ltd Vs First American Bank of Kenya & Others
    (2003) KLR 125
  • Wairimu Mureithi Vs City Council of Nairobi
    Civil Appeal No.5 of 1979 (1981) KLR 322
  • Virginia Edith Wambui Vs Joash Ochieng Ougo
    Civil Appeal No.3 of 1987 (1987) eKLR
Jurisdiction invoked
Sections 1A, 3A, 63(e) of the Civil Procedure Act and Order 40 of the Civil Procedure Rules 2010

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, "James Mwaniki Mukua & another v Mark Mugekenyi Kariuki & 2 others [2018] KEELC 4138 (KLR)", Case Analysis (2018). Not stated in judgment (Notice of Motion dated 25th April 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4138/eng@2018-03-09

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