Sutton Holdings Limited v Eric Opon Nyamunga [2019] KEELC 2853 (KLR)
The bottom line
#The Environment and Land Court in Kisumu dismissed a landowner's bid for an injunction because an official green card showed his title registration had been cancelled as a forgery.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case for a temporary injunction
No. Where a green card expunged the very entries under which the Plaintiff was registered as proprietor, and that deposition was uncontroverted, the Plaintiff failed to demonstrate a prima facie case for restraining orders at the interlocutory stage.
Both parties produced titles: the Plaintiff relied on a title deed dated 26th July 2011, while the Defendant produced a title deed dated 27th July 1990 and a green card issued on 2nd October 2013 showing that entries 5 to 10, including the Plaintiff's registration, had been expunged as forgeries and earlier entries reinstated. Section 26 of the Land Registration Act makes the registered proprietor prima facie absolute and indefeasible owner. The Defendant's uncontroverted deposition, coupled with the 2013 green card reflecting the latest position, meant the Plaintiff's claim of indefeasible title had not been established and no prima facie case with a probability of success existed.
Whether the Plaintiff was entitled to a mandatory injunction for eviction at the interlocutory stage
No. A party who fails to earn a temporary injunction cannot be granted eviction relief before the main suit is heard and determined on merit.
Relying on the authorities cited by counsel, including Kenya Breweries Ltd & Another vs Washington O. Okeyo and Olive Mwihaki Mugenda & Another vs Okiya Omtata Okoiti & 4 Others (which referred to the Indian decision Ashok Kumar Baipai vs Dr. (Smt) Ranjama Baipai), the court held that a mandatory injunction at the interlocutory stage is an exceptional remedy. Having failed to convince the court that it deserved a temporary injunction, the Plaintiff could not obtain the eviction relief prayed in the plaint without the main suit being heard on its merits.
Who bears the costs of the application
The Plaintiff, having failed in all prayers, to meet the Defendant's costs.
Costs follow the event. Since the Plaintiff failed to succeed in any of the prayers in the motion, the Plaintiff was to meet the Defendant's costs of the application, and the motion was dismissed with costs.
Legal principles established
#- A court is obligated under Section 26 of the Land Registration Act to take the person named in the certificate of title as the prima facie absolute and indefeasible owner, subject to the listed conditions, until lawfully impugned.
- A litigant who fails to establish entitlement to a temporary injunction cannot obtain eviction or other final relief at the interlocutory stage without the main suit being heard and determined on merit.
Court orders
#- 1.The Plaintiff's motion dated 27th April 2018 is dismissed with costs.
- Jurisdiction invoked
- Environment and Land Court jurisdiction under the Environment and Land Court Act over disputes relating to title and possession of land (Kisumu/Korando/1973)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sutton Holdings Limited v Eric Opon Nyamunga [2019] KEELC 2853 (KLR)", Case Analysis (2019). Notice of motion dated 27th April 2018 (in the suit over Kisumu/Korando/1973). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2853/eng@2019-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.