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ELCPartially AllowedNot stated in judgment· [2019] KEELC 1610 (KLR)

Samwel Odhiambo Oludhe & 2 others v Benken Enterprises Limited & another [2019] KEELC 1610 (KLR)

Environment and Land Court
2 October 2019
2,605 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court blocked a company from taking a family's land after the Lands Registry disowned the company's ownership documents as fake.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (B M Eboso, J) delivered on 2 October 2019 on two rival notices of motion in a land suit over LR Number 1870/X/72 in Westlands, Nairobi, measuring about 0.661 acres. The plaintiffs, administrators of the estate of Jackson Oludhe Aloo (to whom the property was conveyed by indenture dated 1/11/1965), sought an interlocutory injunction restraining the 1st defendant, Benken Enterprises Limited, from interfering with their quiet possession. The 1st defendant sought a reciprocal injunction and setting aside of the interim orders of 16/5/2018, claiming it purchased the property from the deceased in 1996 and obtained an indenture dated 14/8/2003 executed through a 1996 power of attorney. The 2nd defendant, the Land Registrar, stated the registry holds no records of any conveyance to the 1st defendant and described the 1st defendant's documents as not emanating from the Lands Registry. Applying the Giella v Cassman Brown criteria, the court found the plaintiffs had demonstrated a prima facie case, that damages would not be an adequate remedy, and that the balance of convenience favoured them. The plaintiffs' motion was allowed in terms of prayers 4 and 6; the 1st defendant's motion was dismissed; the order requiring the Registrar to file a report was refused as illogical; and the 1st defendant was ordered to bear the costs of both applications.

Key legal issues

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01

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

Holding

Yes - the plaintiffs demonstrated prima facie evidence that the suit property still belongs to the deceased's estate and that the 1st defendant's documents did not originate from the Lands Registry

Reasoning

The Land Registrar, custodian of records under the repealed Government Lands Act, stated that the 1st defendant's indenture, power of attorney and postal search were not in the registry records. Further, the deceased died in 1998 yet the indenture purportedly executed by him is dated 2003, and the plaintiffs have been in uninterrupted possession.

p. 2
02

Whether damages would be an adequate remedy

Holding

No - damages would not adequately compensate the plaintiffs who hold a prima facie clear legal right

Reasoning

Given serious allegations of fraud supported by prima facie evidence, and the Registrar's impugnation of the 1st defendant's documents, the court would fail in its duty to tell a party with a prima facie case that eviction could be cured by damages.

p. 3
03

Balance of convenience

Holding

It tilts in favour of the plaintiffs, who have been in possession all along

Reasoning

The estate has been in continuous possession; the 1st defendant only recently emerged with impugned documents. The inconvenience to the 1st defendant is minimal compared to that of the plaintiffs.

p. 3
04

Whether the subsisting interim order of 16/5/2018 should be set aside for want of service under Order 40 Rule 4(3)

Holding

The issue was moot because the findings on the injunction entitled the plaintiffs to the interim relief sought

Reasoning

Having found the plaintiffs entitled to interim restraining orders under prayers 4 and 6, the court did not need to determine the setting-aside application; the plaintiffs' entitlement disposed of the issue.

p. 3

Legal principles established

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  • The criteria for an interlocutory injunction are those in Giella v Cassman Brown: prima facie case with probability of success, irreparable damage not compensable by damages, and balance of convenience
  • A holder of documents impugned by the Land Registrar cannot be left in possession on the promise of damages

Court orders

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  1. 1.The plaintiffs' notice of motion dated 11/5/2018 is allowed in terms of prayers 4 and 6
  2. 2.The 1st defendant's notice of motion dated 21/6/2018 is dismissed for lack of merit
  3. 3.The 1st defendant shall bear costs of the two applications
Jurisdiction invoked
Environment and Land Court jurisdiction over land disputes (interlocutory applications in a land suit)

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, "Samwel Odhiambo Oludhe & 2 others v Benken Enterprises Limited & another [2019] KEELC 1610 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1610/eng@2019-10-02

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