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ELCDismissedNot stated in judgment (ELC, Kajiado)· [2019] KEELC 428 (KLR)

Sheila Wanjiru Mbuthi v Abdalla Abdul Jalil & another [2019] KEELC 428 (KLR)

Environment and Land Court
5 December 2019
COCHRISTINE OCHIENG
1,689 words in judgment
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The bottom line

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The court refused an injunction in a Kenyan land access dispute, keeping the Land Registrar's demarcated road in place until trial resolves the boundary conflict.

What this practically means

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Executive summary

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The Plaintiff, a registered owner (in trust for the estate of George Mbuthi Njoroge) of Kajiado/Mailua/555, brought three Notice of Motion applications under Sections 18(2), 19 and 86(1) of the Land Registration Act and Orders 40 and 51 of the Civil Procedure Rules seeking injunctions against the Defendants and an order directing the 2nd Defendant (Land Registrar) to give an access road between Kajiado/Mailua/352 and 353. She asserted long possession since 1993, construction of a hotel on the suit land, purchase from Abdul Jalil Abdul Khan, and a boundary dispute culminating in a Land Registrar's report dated 28 November 2018 demarcating a 9-metre road along the Registry Index Map. The 1st Defendant, through his son and heir Abdalla Abdul Jalil, opposed, contending the Plaintiff's late husband fenced off almost one acre beyond the purchased 80x100 plot and that the Land Registrar's 2018 ruling had not been appealed. The court, per Christine Ochieng J, framed a single issue: entitlement to temporary injunction. Applying Giella v Cassman Brown, Mrao and Nguruman, the court held the Plaintiff had not demonstrated a prima facie case: the Land Registrar had already determined the access road, the Plaintiff's complaints turned on facts requiring viva voce evidence, and the alleged daily losses of Kshs. 8,000 were not shown as actual, compensable injury. The applications were accordingly dismissed. The court directed that the access road ascertained by the Land Registrar's report of 28 November 2018, currently in use, be maintained pending the outcome of the suit, directed an expedited hearing, and ordered costs in the cause.

Key legal issues

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01

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

Holding

The Plaintiff did not establish a prima facie case against the Defendants

Reasoning

The dispute centred on a boundary and access road, which the Land Registrar had already determined by report dated 28 November 2018. The Plaintiff's dissatisfaction with that determination, based on the alleged failure to appreciate that parcel 351 no longer existed, raised factual questions resolvable only at trial. No interference with parcel 555 by the Defendants was shown; the claimed daily losses were not substantiated as actual, compensable injury.

p. 2
02

Whether temporary injunction should issue pending hearing of the suit

Holding

Injunction refused; status quo of the ascertained access road to be maintained pending the outcome of the suit

Reasoning

Applying the Giella principles and Nguruman on demonstrable injury, the court found the plaintiff's complaints speculative and best resolved at viva voce hearing. Rather than grant or refuse outright, the court preserved the access road as demarcated by the Land Registrar and directed an expedited hearing.

p. 2

Legal principles established

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  • Definition of a prima facie case in injunction applications
  • Speculative injury cannot suffice in applications for injunctive relief

Court orders

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  1. 1.The ascertained access road by the Land Registrar in his report dated 28th November 2018, which is currently in use, shall be maintained pending the outcome of the suit
  2. 2.The matter to be set down for hearing on a priority basis
  3. 3.Costs in the cause

Authorities

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Legislation

  • Land Registration ActSections 18(2), 19, 86(1)
  • Civil Procedure RulesOrder 51, Order 40

Cases cited (4)

  • Kenya Hotels Vs Kenya Commercial Bank Limited & 2 Others
    HCCC No. 8 of 2004 (unreported)
  • Mrao V First American Bank of Kenya Limited & 2 others
    (2003) KLR 125
  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
Jurisdiction invoked
Sections 18(2), 19 and 86(1) of the Land Registration Act; Order 51 and Order 40 of the Civil Procedure Rules

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, "Sheila Wanjiru Mbuthi v Abdalla Abdul Jalil & another [2019] KEELC 428 (KLR)", Case Analysis (2019). Not stated in judgment (ELC, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/428/eng@2019-12-05

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