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ELCDismissedCase No 44 of 2017· [2018] KEELC 4674 (KLR)

Joseph Kariko v Mandeep Singh Sahota & 3 others [2018] KEELC 4674 (KLR)

Environment and Land Court
24 January 2018
DOD. O. Ohungo
1,796 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A buyer without a registered title lost a bid to block a registered leaseholder from a Nakuru plot, proving Kenya's courts reward completion of registration.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Nakuru by D. O. Ohungo J dealt with two interlocutory applications in a land dispute over Nakuru Municipality Block 23/740. The plaintiff, alleging he purchased the property in 2014 from Kipoki Oreu Tasur, sued the 1st defendant for trespass, seeking eviction, damages and an injunction, and moved for an interlocutory injunction with police enforcement. The 1st defendant, who produced a Certificate of Lease dated 18th January 2017 showing he purchased from Benjamin Cheboi and was registered proprietor, applied to strike out the suit for non-joinder, absence of cause of action and abuse of process. The 2nd to 4th defendants did not oppose either application. The court first considered striking out, applying the D.T. Dobie principle that striking out is a draconian remedy for the clearest of cases; holding that ownership is a question of fact and law for trial, it dismissed that application. On the injunction, applying Giella v Cassman Brown as sequenced per Nguruman Limited v Jan Bonde Nielsen, the court found the plaintiff was not the registered proprietor, had no executed or registered transfer, and that under Section 26 of the Land Registration Act the 1st defendant's Certificate of Lease was conclusive ownership absent any pleaded fraud or illegality. No prima facie case was established, so the remaining Giella limbs did not arise. Both applications were dismissed with each party bearing own costs.

Key legal issues

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01

Whether the suit should be struck out for non-joinder and abuse of process

Holding

Application dismissed; a suit with even a semblance of a cause of action should go to trial

Reasoning

The court applied the D.T. Dobie principle that striking out is a last resort. Ownership is a question of fact and law to be determined at trial on evidence; the plaintiff may amend pleadings or adduce further evidence. If he fails, the 1st defendant will still achieve dismissal at trial, so summary striking out was not warranted.

p. 2
02

Whether the plaintiff was entitled to an interlocutory injunction

Holding

Application dismissed; no prima facie case established

Reasoning

The plaintiff was not the registered proprietor and produced no evidence of an executed or registered transfer. The 1st defendant held a Certificate of Lease and official search confirming registration, conclusive under Section 26 of the Land Registration Act, with no pleaded fraud or illegality. The first Giella limb failing, the other limbs fell away per Nguruman.

p. 3

Legal principles established

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  • Striking out a suit is a draconian remedy resorted to only in the clearest of cases
  • A Certificate of Lease is conclusive proof of ownership under Section 26 of the Land Registration Act absent allegations of fraud or illegality
  • The three Giella conditions are applied sequentially as separate hurdles; failure of the first disposes of the application

Court orders

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  1. 1.Notice of Motion dated 10th February 2017 dismissed
  2. 2.Notice of Motion dated 12th May 2017 dismissed
  3. 3.Each party to bear own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 1 rule 10
  • Land Registration ActSection 26
  • Land Registration ActSections 24 and 25
  • Constitution of KenyaArticle 40

Cases cited (3)

  • D.T. Dobie & Company (Kenya) Limited v Joseph Mbaria Muchina & another
    [1980] eKLR
  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
Jurisdiction invoked
Original civil suit under the Civil Procedure Act and Land Registration Act (provisions not specifically pleaded in the judgment excerpt)

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, "Joseph Kariko v Mandeep Singh Sahota & 3 others [2018] KEELC 4674 (KLR)", Case Analysis (2018). Case No 44 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4674/eng@2018-01-24

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