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ELCDismissedNotice of Motion dated 16th June 2015· [2019] KEELC 4880 (KLR)

Simarch Kenya Limited v Bengal Trading Company & another [2019] KEELC 4880 (KLR)

Environment and Land Court
31 January 2019
LKL. Komingoi
1,144 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer's injunction failed because registry records showed its title was forged—always verify titles at the Lands Registry before going to court.

What this practically means

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Executive summary

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This was a Notice of Motion dated 16th June 2015 brought by the plaintiff under Article 40 of the Constitution, Order 40 rule 1 and Order 51 rule 1 of the Civil Procedure Rules, and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking a temporary injunction restraining the defendants from trespassing on, wasting, constructing on, alienating or otherwise interfering with LR No. 21880 Nairobi pending the hearing and determination of the suit. The application was supported by the affidavit of Simon Musyoka Kaingo, the plaintiff's managing director, who relied on a certificate of title showing IR No. 92931 issued on 9th December 1997 for a 99-year lease from 3rd October 1997. The 1st defendant opposed, claiming to be a bona fide purchaser for value from Microtech Accessories Limited, while the Chief Land Registrar, enjoined by consent, deposed through Gordon Odera Ochieng that the plaintiff's title was a work of fraud that never emanated from the Ministry of Lands, and that records show the property registered to Bangal Trading Limited. Applying the Giella vs Cassman Brown principles as elucidated in Mrao Ltd, the court held the plaintiff failed to establish a prima facie case with probability of success, failed to demonstrate irreparable injury not compensable by damages, and that the balance of convenience favoured the 1st defendant. The application was dismissed with costs abiding the outcome of the main suit and all interim orders vacated. Judgment was delivered in Nairobi on 31st January 2019 by L. Komingoi J.

Key legal issues

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01

Whether the plaintiff met the Giella threshold for a temporary injunction

Holding

No. The plaintiff failed on all three limbs: no prima facie case, no demonstration of irreparable injury, and the balance of convenience favours the 1st defendant.

Reasoning

The Senior Assistant Director of Lands Administration deposed that the title LR 21880 IR 92931 is a work of fraud and never emanated from the Ministry of Lands, and that records show the suit property registered to Bangal Trading Limited as LR 209/19715. The 1st defendant's ownership records are traceable at the Chief Land Registrar. Accordingly the plaintiff's claimed right is not genuine and damages would suffice.

p. 2
02

Whether the plaintiff demonstrated irreparable harm not compensable by damages

Holding

No, the plaintiff failed to demonstrate irreparable injury not compensable by an award of damages.

Reasoning

The court found that any loss the plaintiff might suffer could be compensated by damages, and that the balance of convenience tilted towards the 1st defendant whose ownership records could be traced at the office of the Chief Land Registrar.

p. 2
03

Who should bear costs of the application

Holding

Costs were ordered to abide the outcome of the main suit.

Reasoning

Rather than awarding costs to any party on the interlocutory application, the court deferred the question of costs until the main suit is determined.

p. 2

Legal principles established

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  • In an application for interlocutory injunction the onus is on the applicant to satisfy the court that it should grant an injunction, per the Giella vs Cassman Brown principles
  • An applicant for an injunction must make full disclosure of relevant facts and show a legal or equitable right requiring protection
  • A title that Lands Registry records show to be a forgery cannot found a prima facie case

Court orders

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  1. 1.The Notice of Motion dated 16th June 2015 is dismissed
  2. 2.Costs to abide the outcome of the main suit
  3. 3.Any interim orders previously issued are vacated

Authorities

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Legislation

  • Constitution of Kenya 2010Article 40
  • Civil Procedure Rules 2010Order 40 rule 1
  • Civil Procedure Rules 2010Order 51 rule 1
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A

Cases cited (3)

  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Mrao Limited vs First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
  • Kenleb Cons Ltd vs New Gatitu Service Station Ltd & Another
    1990 KLR 557
Jurisdiction invoked
Article 40 of the Constitution of Kenya 2010; Order 40 rule 1 and Order 51 rule 1 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the 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, "Simarch Kenya Limited v Bengal Trading Company & another [2019] KEELC 4880 (KLR)", Case Analysis (2019). Notice of Motion dated 16th June 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4880/eng@2019-01-31

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