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ELCDismissedNotice of Motion dated 18th May 2016 (suit re Land Reference Number Nyandarua/Kitiri/419)· [2018] KEELC 4291 (KLR)

Kitiri Farmers Co-Operative Society v Chief Land Registrar & 3 others [2018] KEELC 4291 (KLR)

Environment and Land Court
14 February 2018
2,994 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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A society claiming ownership of Nyandarua land lost its bid for a court injunction because it couldn't prove ownership or honest disclosure.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Nyahururu (M.C. Oundo, J) on a Notice of Motion dated 18th May 2016 in which the Plaintiff, a society claiming to have purchased land parcel Nyandarua/Kitiri/419 from the 2nd Defendant in 1968, sought a temporary injunction restraining the 2nd, 3rd and 4th Defendants from trespassing on, interfering with, or disposing of that land or its alleged unlawful subdivisions (Nyandarua/Kitiri/7918-7930), plus police assistance to enforce the orders. The Plaintiff alleged a fraudulent transfer of the charged land following a tribunal award in North Kinangop District Land Tribunal Case No. 020 of 2005, adopted in Nyahururu PMCC Land Dispute Case No. 17 of 2005. The Respondents countered that the land was subdivided and sold to purchasers, whose interests were confirmed by the tribunal award, the Nyahururu decree, an allotment letter and a Land Management Board decision, and that they were in actual possession. Applying Giella v Cassman Brown, the court found the Applicant had not proved proprietorship or the alleged fraud, hence no prima facie case; that granting the injunction would effectively evict Respondents in possession, amounting to a mandatory order for which no special circumstances were shown; and that the balance of convenience favoured the Respondents. The court also found the Applicant guilty of material non-disclosure and unclean hands. The application dated 18th May 2016 was dismissed with costs in the cause, and parties were ordered to maintain the status quo pending the hearing and determination of the suit.

Key legal issues

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01

Prima facie case

Holding

The Applicant failed to establish a prima facie case as it provided no supporting evidence of proprietorship of the suit land.

Reasoning

Though the suit land once belonged to the 2nd Respondent and the Applicant charged it for a loan, no evidence proved the Applicant's ownership or the alleged fraudulent transfer. An official search showed the land still registered in the 2nd Respondent's name in 2005. Without proprietorship, no apparent right infringed was established.

p. 5
02

Irreparable harm / mandatory injunction

Holding

Granting the injunction would amount to evicting Respondents in actual possession, i.e. a mandatory order requiring special circumstances not shown.

Reasoning

Respondents were in actual possession; injuncting them would effectively be an eviction order, equivalent to a final mandatory injunction granted at interlocutory stage, which is inappropriate absent clear cases and special circumstances per Kenya Breweries v Washington Okeyo.

p. 5
03

Balance of convenience

Holding

Balance of convenience tilted in favour of the Respondents.

Reasoning

Since the Respondents were in actual possession and the Applicant had not proved ownership, the equities of inconvenience favoured leaving possession undisturbed pending trial.

p. 5
04

Clean hands / material non-disclosure

Holding

The Applicant was guilty of material non-disclosure and did not come to court with clean hands, disentitling it to equitable relief.

Reasoning

The Applicant misrepresented that its members were in occupation when in fact the Respondents were in possession. An injunction is equitable and withheld from a party whose conduct shows it undeserving.

p. 6

Legal principles established

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  • A party seeking an interlocutory injunction must establish a prima facie case with a probability of success, irreparable injury not compensable in damages, and failing which the balance of convenience decides (Giella v Cassman Brown).
  • A mandatory injunction at interlocutory stage requires special circumstances over and above a prima facie case.
  • Injunction being an equitable remedy, the applicant must come to court with clean hands and full disclosure.

Court orders

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  1. 1.Application dated 18th May 2016 dismissed
  2. 2.Costs in the cause
  3. 3.Parties to maintain the status quo until hearing and determination of the suit
Jurisdiction invoked
Order 40 Rules 1,2,3 and 4 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (inherent jurisdiction)

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, "Kitiri Farmers Co-Operative Society v Chief Land Registrar & 3 others [2018] KEELC 4291 (KLR)", Case Analysis (2018). Notice of Motion dated 18th May 2016 (suit re Land Reference Number Nyandarua/Kitiri/419). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4291/eng@2018-02-14

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