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ELCAllowedNotice of motion dated 10th October 2017 (suit title/number not stated in judgment)· [2019] KEELC 2957 (KLR)

Eric Kariuki Mburu v Jamlick Irungu Wanjohi & 8 others [2019] KEELC 2957 (KLR)

Environment and Land Court
13 June 2019
YAY.M. Angima
1,059 words in judgment
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The bottom line

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Kenya's Environment and Land Court froze all dealings on eleven disputed land parcels, confirming you don't need to prove fraud to protect property while a case is pending.

What this practically means

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Executive summary

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The Plaintiff moved the court by notice of motion dated 10th October 2017 under Order 51 Rule 1 of the Civil Procedure Rules, section 3A of the Civil Procedure Act and section 68 of the Land Registration Act 2012, seeking inhibition orders against eleven sub-divisions of Title No. Nthawa/Gitiburi/2290 pending the hearing of the suit. The Plaintiff claimed his late father purchased parcel 2290 from the 1st Defendant's late father, who handed over the original title deed, but both died before transfer; the 1st Defendant then allegedly fraudulently gazetted loss of the title and sub-divided and sold portions to the 3rd-7th Defendants. The 1st Defendant denied fraud, asserting the title was stolen and the sale agreement void for want of Land Control Board consent, while the 3rd, 4th, 5th and 7th Defendants pleaded innocent purchase for value. The Attorney General filed nothing despite being given 45 days. Angima J framed the sole question as whether the Plaintiff had made out a case for inhibition under section 68. Applying Rudi Marquardt and Shivabhai Patel, the court held that the Plaintiff's claim was neither fanciful nor frivolous, that fraud need not be proved at the interlocutory stage, and that the court has a duty to preserve disputed property. The application was allowed: inhibition was granted over all eleven titles pending determination of the suit, with costs in the cause.

Key legal issues

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01

Whether an order of inhibition under section 68 of the Land Registration Act should issue

Holding

Yes - the Plaintiff established a claim worthy of trial, justifying preservation of the suit properties pending determination

Reasoning

The Plaintiff's claim that the 1st Defendant fraudulently gazetted loss of the title and sub-divided and sold the land was neither fanciful nor frivolous. At interlocutory stage fraud need not be proved; defences such as want of Land Control Board consent and the innocent purchaser claims of the 3rd-7th Defendants are matters for trial. The court has a duty to preserve disputed property to avoid a barren result.

p. 2

Legal principles established

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  • An applicant for inhibition need only show an arguable or plausible case; proof of fraud is a matter for trial
  • The purpose of an order of inhibition is to preserve property in dispute by preventing further registrations

Court orders

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  1. 1.An order of inhibition granted to prohibit all dealings with respect to Title Nos. Nthawa/Gitiburi/3402, 3403, 3404, 3405, 3406, 3407, 3607, 3608, 3609, 3610 & 3611 pending the hearing and determination of the suit
  2. 2.Costs of the application shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure Act (Cap. 21)section 3A
  • Land Registration Act 2012section 68

Cases cited (2)

  • Rudi Marquardt Electronic Co. Ltd V Vallery Jimoi Khazalwa & 4 Others
    [2015] eKLR
  • Shivabhai Patel Vs Manibhai Patel
    [1959] EA 907
Jurisdiction invoked
Section 68 of the Land Registration Act 2012; Order 51 Rule 1 Civil Procedure Rules; section 3A Civil Procedure Act

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, "Eric Kariuki Mburu v Jamlick Irungu Wanjohi & 8 others [2019] KEELC 2957 (KLR)", Case Analysis (2019). Notice of motion dated 10th October 2017 (suit title/number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2957/eng@2019-06-13

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