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ELCDismissedNot stated in judgment· [2019] KEELC 3848 (KLR)

Lilian Akinyi Abuto & another v Peter Kinyanjui Gitau & 2 others [2019] KEELC 3848 (KLR)

Environment and Land Court
9 April 2019
AOA. Omollo
1,509 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This was a ruling on the plaintiffs' application dated 14th June 2018 under Order 40 of the Civil Procedure Rules seeking to restrain the defendants from further dealing with, constructing on or developing land in Nyali, Mombasa (subdivision 13078/3 or 13079, original 13030/50, Section 1 Mainland North, CR 37340), which they claimed to have purchased in 2004. The 1st defendant opposed, asserting he was the fifth purchaser of the land, having bought it from Hassan Abdullahi Hassan on 20th April 2016, and that he held a valid title and was in possession with development approvals. He argued the applicants had themselves transferred their interest to Fredrick Otieno Oyugi in 2009 and had produced no evidence of fraudulent transfer. The court examined the title entries, noting a caveat by Joab Juma Pambo removed by court order, successive transfers to the 2nd respondent, Miltan Developers Ltd, Hans Peter & Belinda Omondi and Hassan, before the 1st defendant's registration. The court found the issues of ownership raised by the plaintiffs were matters for the main suit and that they had not addressed the Giella principles. On the merits of the application, the court held there was no prima facie case against the 1st defendant as fifth purchaser; any loss was quantifiable given sale agreements valuing the land and a claim for general damages in the plaint; and the balance of convenience favoured the 1st defendant, who was in possession and developing. The application was dismissed with each party bearing their own costs, with a condition that the 1st defendant would not be compensated for developments if the plaintiffs' case succeeded.

Key legal issues

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01

Whether the applicants established a prima facie case against the 1st defendant

Holding

No prima facie case was established at this stage

Reasoning

The title showed eight entries before the 1st defendant's registration, including transfers the plaintiffs were not challenging and a court order lifting a caveat in High Court Civil Suit No. 260 of 2008 (O.S) about which the applicants said nothing. The 1st defendant was a fifth purchaser. It was premature to determine ownership issues reserved for the main suit.

p. 2
02

Whether the applicants would suffer irreparable loss not compensable by damages

Holding

No, the loss was quantifiable

Reasoning

Both the applicants and the 1st defendant had sale agreements attaching monetary value to the land, and the plaint included a prayer for general damages, so any loss could be compensated by an award of damages if the suit succeeded.

p. 2
03

Where the balance of convenience lies

Holding

With the 1st defendant, who is in possession and undertaking developments

Reasoning

It was not disputed that the 1st defendant was in possession and developing the land; the balance of convenience favoured him pending determination of whether he holds a good title, subject to the condition that he would not be compensated if the plaintiffs' case succeeded.

p. 3

Legal principles established

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  • Where loss arising from interference with land can be quantified and damages are claimable in the plaint, the loss does not meet the threshold of irreparable loss

Court orders

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  1. 1.Dismissal of the plaintiffs' application dated 14th June 2018
  2. 2.Order that each party bear their own costs of the application
  3. 3.Condition that if the 1st defendant continues development, the plaintiffs will be under no obligation to compensate him should their case succeed

Authorities

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Legislation

  • Civil Procedure RulesOrder 40
  • Constitution of Kenya, 2010Article 159
  • Land Registration ActSections 24 & 25
  • Registration of Titles ActSection 23

Cases cited (2)

  • Jan Bolden Nielson vs Herman Phillipsis & 2 others
    (2012) eKLR
  • Giella vs Cassman Brown
Jurisdiction invoked
Order 40 of the Civil Procedure Rules and article 159 of the Constitution

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, "Lilian Akinyi Abuto & another v Peter Kinyanjui Gitau & 2 others [2019] KEELC 3848 (KLR)", Case Analysis (2019). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/3848/eng@2019-04-09

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