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ELCAllowed· [2020] KEELC 601 (KLR)

Bashir Yusuf & another v Talalei Kiptenai [2020] KEELC 601 (KLR)

Environment and Land Court
23 June 2020
2,718 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court blocked any dealings on disputed Eldoret land, protecting buyers who paid in full and held a title later cancelled.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (M. A. Odeny J) on the applicants' application dated 23rd October 2019 seeking an interim order of inhibition over the immovable property known as ELDORET MUNICIPALITY BLOCK 21(KINGONGO)5517 pending the hearing and determination of the suit. The parties had entered a sale agreement in 2002 over a parcel measuring 0.087Ha for Kshs. 1,800,000, which was paid in full; the applicants took possession, developed the property, and leased part of it to Bakri International Company (K) Ltd. In 2019 a search revealed the applicants' title had been cancelled and the land reverted to the respondent, with new resultant parcels registered in the name of Teresa Chebichii Ruto. The applicants invoked Section 68(1) of the Land Registration Act and the Giella v Cassman Brown principles. The respondent claimed the transaction was concluded, that the proper party was Teresa Chebichii Ruto who effected the subdivision, and relied on a pending review application before the Court of Appeal in Eldoret Civil Appeal No. 88 of 2016. The court held that an inhibition order is analogous to a prohibitory injunction preserving the disputed property; that the applicants established a prima facie case, irreparable harm not compensable by damages, and that the balance of convenience and the lower risk of injustice favoured them. The respondent's pending review application did not bar relief absent an application to stay the parallel proceedings. The application was allowed as prayed.

Key legal issues

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01

Prima facie case with probability of success

Holding

Established - the applicants entered a sale agreement, paid the full purchase price, were issued a certificate of title, and face subsequent subdivisions affecting their proprietary interest.

Reasoning

Both parties admitted the sale and transfer of the suit land to the applicants. The dispute is whether further subdivisions affected the applicants' proprietary interest as shown on the title's encumbrance section. Citing Kenleb Cons Ltd, the court found the applicants disclosed a legal or equitable right requiring protection by injunction; an injunction would not prejudice a respondent who claims the transaction is concluded.

p. 3
02

Irreparable harm

Holding

Established - damages would not adequately compensate the applicants if their title were defeated by further dealings.

Reasoning

Applying Mureithi v City Council of Nairobi and American Cynamid as cited in Alternative Media Ltd v Safaricom, the court found that the applicants would suffer irreparable harm not compensable in damages, particularly as the respondent might charge, lease or sell the property, prejudicing the applicants' interest and that of their leaseholder operating a petrol station on part of the land.

p. 4
03

Balance of convenience

Holding

Tilts in favour of the applicants; the lower risk of injustice lies in granting the inhibition.

Reasoning

Applying Films Rover International v Cannon Film Sales and R.J.R. MacDonald v Attorney General, the court weighed the relative harm: the injustice to the respondent if inhibition were granted and the applicants later failed at trial is lower than the injustice to the applicants if inhibition were refused and they proved their case. The order preserves the suit land while proprietary interests are determined.

p. 3

Legal principles established

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  • An order of inhibition under Section 68 of the Land Registration Act is akin to a prohibitory injunction and preserves the disputed property pending trial; it should issue where the applicant has good grounds.
  • Where a party alleges a transaction is concluded and owes the applicant nothing, an injunction preserving the property cannot prejudice that party.
  • A pending review application in another court does not restrain the trial court from granting interim relief absent an application to stay the parallel proceedings.
  • The court should take the course that carries the lower risk of injustice when weighing competing interim interests.

Court orders

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  1. 1.An interim order of inhibition issued over the immovable property known as ELDORET MUNICIPALITY BLOCK 21(KINGONGO)5517, inhibiting any further transaction over it pending the hearing and determination of the suit

Authorities

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Legislation

  • Land Registration Act, Act No. 3 of 2012Section 68(1)

Cases cited (13)

  • GIELLA VS CASSMAN BROWN & COMPANY LTD
    (1973) EA 358
  • NGURUMAN LIMITED VS IAN BONDE NIELSEN & 2 OTHER
    [2014] EKLR
  • RIPPLES LTD VS. MUCUBA
    [1992] eKLR
  • ABDULKADIR SHARIFF AVDIRAHIM VS. ECO BANK KENYA LIMITED & ANOTHER
    (2016) eKLR
  • MACHARIA MWANGI MAINA AND OTHERS V DAVIDSON MWANGI
    [2014] eKLR
  • FILMS ROVER INTERNATIONAL & OTHERS VS CANNON FILMS SALES LTD
    1986 3 ALL E.R 772
  • Kenleb Cons Ltd vs New Gatitu Services Station Ltd & Another
    [1990] KLR 557
  • Agip (K) Ltd Vs Maheshchandra Himatlal Vora & Others
    Civil Appeal No. 213 of 1999
  • Wairimu Mureithi Vs City Council of Nairobi
    Civil Appeal No.5 of 1979 (1981) KLR 322
  • Alternative Media Limited vs. Safaricom Limited
    (2004) eKLR
  • R.J.R. MACDONALD V ATTORNEY GENERAL
    (1941) 1 S.C.R 311
  • American Cynamid Co. vs Ethicon
    (1975) 1 ALLER 504
  • SHADRACK KURIA KIMANI VS STEPHEN GITAU NG'ANG'A & ANOR
    (2017) eKLR
Jurisdiction invoked
Section 68(1) of the Land Registration Act, Act No. 3 of 2012 (interlocutory application in an original suit)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Bashir Yusuf & another v Talalei Kiptenai [2020] KEELC 601 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/601/eng@2020-06-23

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