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ELCDismissed· [2018] KEELC 4909 (KLR)

Chepkemboi (Suing as the Executrix of the Estate of Elizabeth Chekemboi Dalton - Deceased) v Koi (Environment & Land Case 78 of 2017) [2018] KEELC 4909 (KLR)

Environment and Land Court
28 June 2018
JOJ.O. OLOLA
960 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner's title certificate was not enough to win an injunction because she could not explain how she actually acquired the land.

What this practically means

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Executive summary

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The Plaintiff, Helen Chelel Dalton, executrix of the Estate of Elizabeth Chepkemboi Dalton, applied by Notice of Motion dated 4th April 2017 for an interlocutory injunction restraining the Defendant, Anderson Kazungu Koi, from interfering with or trespassing on land parcel Gede/Mijomboni/905, alleging he had cut down mango trees and begun constructing structures. The Defendant, administrator of the estate of his late father Kazungu Koi (original owner of Gede/Mijomboni/156, who died in 1981), replied that the family had always occupied the land, comprising their family home, and did not know how the Plaintiff acquired title in 1992, eleven years after the father's death. The Plaintiff relied on her registered title under Section 26 of the Land Registration Act and asserted regular acquisition. Applying the Giella v Cassman Brown principles, J.O. Olola J held that once the Defendant challenged the process by which the Plaintiff acquired title to land admittedly previously registered in the Defendant's father's name, the Plaintiff bore the evidential burden to rebut that challenge. Citing Munyu Maina v Hiram Gathiha Maina, the court found a title instrument alone insufficient where the root of title is under challenge, and noted the Plaintiff's silence on how she acquired her interest. Further, the Plaintiff did not deny the Defendant's occupation, so the balance of convenience favoured the Respondent, who would face eviction if the orders issued. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Prima facie case for interlocutory injunction

Holding

The Applicant failed to establish a prima facie case because she was silent on how she acquired title to land previously registered in the Defendant's father's name

Reasoning

The Green Card showed the suit parcel was subdivided from Gede/Mijomboni/156, originally registered to Kazungu Koi in 1975, who died in 1981 before the 1992 subdivision. The Applicant invoked Section 26 of the Land Registration Act but, once the Defendant challenged the root of title, the certificate of title was insufficient; the Applicant had to prove the legality of her acquisition and did not.

p. 2
02

Balance of convenience

Holding

The balance of convenience tilts in favour of the Respondent, who is in occupation and would be evicted if the injunction issued

Reasoning

The Applicant did not deny the Respondent's present occupation and possession of the suit premises, which comprises his family home. Granting the injunction pending trial would result in eviction of the Respondent's family, so the court declined the application on this additional ground.

p. 3

Legal principles established

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  • Where a registered proprietor's root of title is challenged, the proprietor must prove the legality of the acquisition, not merely produce the title instrument
  • Once the acquisition of title is challenged, the proprietor bears the evidential burden to rebut the challenge

Court orders

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  1. 1.The Notice of Motion dated 4th April 2017 seeking an interlocutory injunction is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Land Registration ActSection 26

Cases cited (2)

  • Giella –vs Cassman Brown & Company Ltd
    (1973)EA 358
  • Munyu Maina –vs Hiram Gathiha Maina
    (2013) eKLR
Jurisdiction invoked
not expressly stated; interlocutory application under the Civil Procedure Act/rules in a land dispute (Land Registration Act, Section 26 invoked by the applicant)

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, "Chepkemboi (Suing as the Executrix of the Estate of Elizabeth Chekemboi Dalton - Deceased) v Koi (Environment & Land Case 78 of 2017) [2018] KEELC 4909 (KLR)", Case Analysis (2018). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4909/eng@2018-06-28

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