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ELCPartially AllowedNot stated in the extract (plaint dated 29th November 2019)· [2020] KEELC 622 (KLR)

Albert Nganga Kithua v Bernard Mucindoh & 38 others [2020] KEELC 622 (KLR)

Environment and Land Court
29 October 2020
YAY. M. Angima
1,281 words in judgment
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The bottom line

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Kenya's Environment and Land Court froze land dealings in a clan dispute because conflicting government awards made the disputed titles too uncertain to touch.

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 Embu (Angima J) on the Plaintiff's notice of motion dated 12th February 2020, brought under Order 51 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Section 68 of the Land Registration Act, 2012, seeking inhibition of dealings with some 40 parcels of land in Mbeere/Kirima. The Plaintiff, suing on behalf of members of Rukonjo house of Rweru clan, has challenged by plaint dated 29th November 2019 the process by which the 1st to 34th Defendants were registered as proprietors of the suit properties, contending that the Minister for Lands' decisions in Land Appeal Case Nos. 141, 143 and 161 of 1996 were contradictory, inconsistent and unimplementable, and that Rweru clan is entitled to 198 acres. The 1st to 33rd Defendants, represented by Ambrose Njiru Nthiga of Mbandi clan, denied the claim, asserting lawful registration following land adjudication of parcel Mbeere/Kirima/2244 claimed by 17 clans, and that Rweru clan received its own award of 143 acres. The Attorney General filed no response. Framing two issues - whether a case for inhibition was made out, and costs - the court found overlapping descriptions in the three Minister's decisions had exhausted the land before Rweru clan's award could be implemented, rendering it nugatory. Satisfied of a risk of alienation during the pendency of the suit, the court allowed the motion in terms of prayer 1, granting the inhibition, and directed that costs of the application be in the cause.

Key legal issues

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01

Whether the Plaintiff made out a case for an order of inhibition over the suit parcels

Holding

Yes - the court found the properties ought to be preserved pending trial because there was a risk of alienation that would render the suit nugatory.

Reasoning

The court found the Defendants were registered pursuant to the award in Minister's Land Appeal Case No. 141 of 1996 (261 acres to Mbandi clan), while Rweru clan's award of 143 acres could not be implemented because the land had been exhausted. Overlapping descriptions in the three Minister's decisions meant the award in the Plaintiff's favour was rendered nugatory. Given this dispute over the validity of the registrations, preservation by way of inhibition was warranted until the suit is determined.

p. 3
02

Who shall bear the costs of the application

Holding

Costs of the application were made costs in the cause rather than awarded to the successful Plaintiff.

Reasoning

The court restated the general rule that costs follow the event under section 27 of the Civil Procedure Act, citing Hussein Janmohammed & Sons v Twentsche Overseas Trading Co. Ltd. However, because of the peculiar circumstances leading to the filing of the suit and application - the overlapping and contradictory Minister's awards - the court departed from the general rule and directed costs to be in the cause.

p. 4

Legal principles established

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  • Costs follow the event and a successful party should ordinarily be awarded costs unless the court for good reason directs otherwise.
  • An order of inhibition may issue to preserve suit property where there is a risk of alienation during the pendency of a suit.

Court orders

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  1. 1.The notice of motion dated 12th February 2020 is allowed in terms of order No. 1 thereof, namely an order of inhibition against dealings with the listed suit parcels pending hearing and determination of the suit.
  2. 2.Costs of the application shall be in the cause.

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure ActSection 27
  • Civil Procedure RulesOrder 51
  • Land Registration ActSection 68

Cases cited (1)

  • Hussein Janmohammed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act (Cap. 21), Order 51 of the Civil Procedure Rules and 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, "Albert Nganga Kithua v Bernard Mucindoh & 38 others [2020] KEELC 622 (KLR)", Case Analysis (2020). Not stated in the extract (plaint dated 29th November 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/622/eng@2020-10-29

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