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ELCPartially AllowedNotice of Motion dated 21st September 2018 (suit over land parcel Kajiado/Olchoro Onyore/2182, now Kajiado/Olchoro Onyore/29494)· [2019] KEELC 3094 (KLR)

Susan Wanjiku Kimani v Creek Ventures Limited; Registrar of Lands Ngong & 2 others (Interested parties) [2019] KEELC 3094 (KLR)

Environment and Land Court
3 June 2019
COChristine Ochieng
1,648 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kenyan court declined to stop a land dispute at an early stage, instead freezing the situation until a full trial resolves the competing title claims.

What this practically means

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Executive summary

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This was a ruling on the Plaintiff's Notice of Motion dated 21st September 2018, brought under Order 40 Rules 1(a) & (b) and 4(1 & 2) of the Civil Procedure Rules, seeking a temporary injunction over land parcel Kajiado/Olchoro Onyore/2182, now Kajiado/Olchoro Onyore/29494 (the suit land). The Plaintiff, successor to the estate of Godfrey Kimani Kariuki, alleged that the 1st Defendant fraudulently excised a portion of the suit land, had it registered as Kajiado/Olchoro Onyore/22305 and fenced it, pointing to a transfer executed 21 years after the original vendor's death and a RIM anomaly confirmed by the Director of Surveys. The 1st Defendant, through its Finance Manager Lilian Wanyeki, denied involvement, asserting it purchased parcel 22305 for value from an administrator of the vendor's estate after due diligence, and counter-alleged that the Plaintiff relied on a forged mutation signed by a deceased person to enlarge her acreage and obtain the new title 29494. The court framed a single issue: whether the Plaintiff was entitled to a temporary injunction. Applying the Giella v Cassman Brown principles, the court found both parties held titles and each alleged fraud against the other, so the contested issues could not be resolved on affidavits. It declined the injunction, directed that the obtaining status quo be maintained pending the outcome of the suit, and ordered costs in the cause.

Key legal issues

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01

Whether the Plaintiff established a prima facie case warranting a temporary injunction against the 1st Defendant

Holding

The court found that both the Plaintiff and the 1st Defendant hold titles to their respective parcels, each alleging fraud against the other, so no prima facie case clear enough to justify an injunction was established; instead the status quo was ordered maintained.

Reasoning

The Plaintiff claimed she was reissued with title to rectify a RIM anomaly after a fraudulent excision creating parcel 22305, while the 1st Defendant claimed to be a purchaser for value from the administrators of the original vendor's estate and alleged the Plaintiff used a forged mutation signed by a deceased person. Both held titles and each disputed the other's title. The court held these conflicting claims of fraud and ownership could only be resolved after viva voce evidence at trial, and consequently declined the injunction but preserved the position by directing that the existing status quo be maintained pending the suit.

p. 2

Legal principles established

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  • The principles for granting a temporary injunction are those established in Giella v Cassman Brown & Co. Ltd (1973) EA 358, including whether a prima facie case with a probability of success has been established.
  • Where competing titles and allegations of fraud exist, contested issues of ownership cannot be determined on an interlocutory application but only upon full trial.

Court orders

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  1. 1.That the obtaining status quo be maintained pending the outcome of the suit
  2. 2.That costs will be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(a) & (b)
  • Civil Procedure RulesOrder 40 Rule 4(1 & 2)

Cases cited (4)

  • Giella Vs Cassman Brown Co. Ltd
    (1973) EA 358
  • Michael Kimani (Suing on his own behalf and as the executor of the estate of Mweya Karonga) Vs George Kimani Gitau (Suing on behalf of the estate of Gitau Karonga)
    eKLR
  • Nairobi Kiru Line Services Ltd Vs County Government of Nyeri & 2 others
    Nyeri High Court Civil Suit No. 11 of 2014
  • Humphrey Kilambo Mcharo Vs Kenya Commercial Bank
    Civil Application No. 51 of 2005
Jurisdiction invoked
Order 40 Rule 1(a) & (b) and Rule 4(1&2) of the Civil Procedure Rules and all other enabling provisions of the law (interlocutory injunctive jurisdiction)

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, "Susan Wanjiku Kimani v Creek Ventures Limited; Registrar of Lands Ngong & 2 others (Interested parties) [2019] KEELC 3094 (KLR)", Case Analysis (2019). Notice of Motion dated 21st September 2018 (suit over land parcel Kajiado/Olchoro Onyore/2182, now Kajiado/Olchoro Onyore/29494). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3094/eng@2019-06-03

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