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ELCDismissedNot stated in the ruling; concerns a Notice of Motion dated 31st July 2018 within an Originating Summons· [2019] KEELC 3736 (KLR)

Zakayo Njeru Ngari v Daudi Ngari Njiru & another Michael Kinyua Namu & 51 others (Interested Parties) [2019] KEELC 3736 (KLR)

Environment and Land Court
7 March 2019
1,734 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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The Embu Environment and Land Court refused to block dealings with 53 Mbeere plots because the applicant failed to prove a clear legal interest or any real danger to the land.

What this practically means

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Executive summary

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By a notice of motion dated 31st July 2018 brought under section 68(1) of the Land Registration Act, Order 51 Rule 10 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, the Applicant sought inhibition and temporary injunction orders against 53 parcels arising from the subdivision of Title No. Mbeere/Kirima/2976, alleging unlawful interference, alienation and construction of access roads by the Respondents and interested parties. The 15th, 16th, 17th, 18th and 30th interested parties filed similarly worded replying affidavits, contending that the 1st Respondent was deceased, that some interested parties were also deceased, that the properties had been lawfully acquired, and that the Applicant had shown no legal interest since he was not claiming ownership. The court framed two questions: entitlement to the inhibition order and to a temporary injunction. The court noted that the Applicant and the deceased 1st Respondent had been jointly registered as proprietors of parcel 2976 on behalf of the Ikandi clan, that a Mbeere Land Disputes Tribunal award enabling subdivision was quashed by consent by the High Court in 2011, yet the subdivision proceeded. The court held that the Applicant had not clearly stated his interest, that no prima facie case under Giella v Cassman Brown could exist against the deceased 1st Respondent whose personal representative was not joined, and that uncontroverted allegations of deceased interested parties meant orders could not issue against persons not heard. There was also no evidence of danger to the properties. The motion was dismissed with costs to the participating interested parties.

Key legal issues

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01

Whether the Applicant established a prima facie case for temporary injunction

Holding

No; the claim against the deceased 1st Respondent was a non-starter and the Applicant's interest in the suit properties was not clearly demonstrated

Reasoning

The court found that the Applicant's interest in parcel 2976 was not clearly pointed out; he held it jointly with the 1st Respondent on behalf of the Ikandi clan, not individually. The 1st Respondent died before suit and no personal representative was joined, so no prima facie case under the Giella test could exist against him. Allegations that some interested parties were deceased were not controverted.

p. 2
02

Whether an inhibition order under section 68(1) of the Land Registration Act ought to issue

Holding

No; there was no evidence of danger to the suit properties justifying inhibition

Reasoning

The court held that inhibition requires demonstrated danger to the properties. There was no evidence the suit properties had fallen or risked falling into the wrong hands. The Applicant, whose interests were as a clan representative, could not encumber the suit properties without lawful justification. The application was therefore dismissed.

p. 3

Legal principles established

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  • A prima facie case with a probability of success cannot be established against a deceased party in the absence of his personal representative; orders should not be made against persons without according them an opportunity of being heard

Court orders

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  1. 1.The notice of motion dated 31st July 2018 is dismissed
  2. 2.Costs of the application to the 15th, 16th, 17th, 18th and 30th interested parties who participated by filing replying affidavits

Authorities

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Legislation

  • Land Registration Actsection 68(1)
  • Civil Procedure RulesOrder 51 Rule 10
  • Civil Procedure Actsection 3A

Cases cited (1)

  • Giella Vs Cassman Brown & Co Ltd
    [1973] EA 358
Jurisdiction invoked
Section 68(1) of the Land Registration Act 2012; Order 51 Rule 10 of the Civil Procedure Rules; section 3A of the Civil Procedure Act (Cap 21)

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, "Zakayo Njeru Ngari v Daudi Ngari Njiru & another Michael Kinyua Namu & 51 others (Interested Parties) [2019] KEELC 3736 (KLR)", Case Analysis (2019). Not stated in the ruling; concerns a Notice of Motion dated 31st July 2018 within an Originating Summons. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3736/eng@2019-03-07

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