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ELCPartially AllowedNot stated (suit of even date with Notice of Motion dated 9/5/2017)· [2019] KEELC 3344 (KLR)

Wilson Barasa Kachero v Fredrick Ojiambo Makokha [2019] KEELC 3344 (KLR)

Environment and Land Court
14 May 2019
755 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court froze land dealings until trial, but warned lawyers that inhibitions and injunctions are different remedies applied under different rules.

What this practically means

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Executive summary

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The Plaintiff, Wilson Barasa Kachero, formerly the registered owner of land parcel No. BUNYALA/BULEMIA/96, sued the Defendant, Ojimabo Makokha Nanjala, the current registered owner, alleging that the land was fraudulently transferred to the Defendant. Together with the suit he filed a Notice of Motion dated 9/5/2017 under Order 40 rule 1 and Order 50 rule 1 of the Civil Procedure Rules seeking, in prayer 2, an order of inhibition under Section 68 of the Land Registration Act, 2012 restraining transfer, subdivision, disposition or charging of the suit land until hearing and determination of the suit, and costs. The Defendant replied that the transfer was lawful, asserting at the hearing that the Plaintiff gifted him the land after failing to repay money advanced, and denied any intention to dispose of it. The court observed that the Plaintiff had conflated inhibition with injunction: the application sought inhibition but was brought under Order 40, which concerns temporary injunctions, and the prayer used the language of restraint. The court set out the test for inhibition - risk of disposal to the applicant's detriment, nugatory suit, and an arguable case - citing Japhet Kaimenyi M'Ndatho v M'Ndatho M'Mbwiria [2012] eKLR, and found the Plaintiff had not met these requirements. Nevertheless, exercising discretion in the overall interests of justice, and because the Defendant would suffer no prejudice, the court allowed the application in terms of prayer 2 and ordered costs to be in the cause. Judgment delivered at Busia on 14th May 2019 by A. K. Kaniaru, Judge.

Key legal issues

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01

Distinction between an order of inhibition and a temporary injunction

Holding

The Plaintiff conflated inhibition with injunction, bringing an inhibition application under Order 40 which governs interim injunctions and has nothing to do with inhibitions; the word 'restrain' in the prayer is also the function of injunctions

Reasoning

The court observed that the Plaintiff treated the order of inhibition as an injunction. The application was brought under Order 40 of the Civil Procedure Rules 2010, which deals with temporary or interim injunctions, and the prayer for inhibition was expressed as meant to 'restrain', which is the function of injunctions. An inhibition is a register-based prohibition on dealings, whereas an injunction restrains a party. Despite the wrong approach, the court considered the overall interests of justice.

p. 1
02

Requirements for grant of an order of inhibition

Holding

The applicant must show the suit property is at risk of disposal to his detriment and/or that refusal would render the suit nugatory, and must demonstrate an arguable case; the Plaintiff did not address these requirements

Reasoning

The court set out the test for inhibition, citing Japhet Kaimenyi M'Ndatho v M'Ndatho M'Mbwiria [2012] eKLR. The Plaintiff did not address himself to these requirements and adopted the wrong approach of treating the application as one for temporary injunction. The court nevertheless granted the order because the Defendant would suffer no prejudice and the interests of justice required preserving the suit land pending determination.

p. 2
03

Whether inhibition should issue on the facts

Holding

Granted, not because the Plaintiff demonstrated he deserved it, but because the Defendant would suffer no prejudice and the order preserves the Plaintiff's pleaded rights pending trial

Reasoning

The court held the Defendant would not be prejudiced in any way if an inhibition was placed on his title. The order ensures no dealings prejudicial to the Plaintiff are conducted at the lands office, giving the Plaintiff the opportunity to demonstrate whether he has arguable rights enforceable against the Defendant. The court granted the order in the overall interests of justice rather than on demonstrated merit.

p. 2

Legal principles established

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  • An applicant for an order of inhibition must show that the suit property is at risk of being disposed of to his detriment and/or that refusal to grant the order will render the suit nugatory, and must demonstrate an arguable case
  • An order of inhibition under Section 68 of the Land Registration Act is distinct from an injunction; an application for inhibition brought under Order 40 of the Civil Procedure Rules adopts the wrong approach

Court orders

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  1. 1.An order of inhibition issued against the Defendant restraining transfer, subdivision, disposition or charging of L.R. No. BUNYALA/BULEMIA/96 until the hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 1
  • Civil Procedure RulesOrder 50 rule 1
  • Land Registration ActSection 68

Cases cited (1)

  • JAPHET KAIMENYI M'NDATHO Vs M'NDATHO M'MBWIRIA
    [2012] eKLR
Jurisdiction invoked
Order 40 rule 1 and Order 50 rule 1 of the Civil Procedure Rules; Section 68 of the Land Registration Act, 2012

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, "Wilson Barasa Kachero v Fredrick Ojiambo Makokha [2019] KEELC 3344 (KLR)", Case Analysis (2019). Not stated (suit of even date with Notice of Motion dated 9/5/2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3344/eng@2019-05-14

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