James Muriithi Ndambiri & another v Efureithi Irima Mugo & 2 others [2020] KEELC 651 (KLR)
The bottom line
#The Environment and Land Court in Embu dismissed a family's attempt to block a rival landowner, because they had already lost the official land appeal process and acted in bad faith.
What this practically means
#Executive summary
#Key legal issues
#Temporary injunction - Giella v Cassman Brown principles
Plaintiffs failed the first limb (prima facie case with a probability of success), so the other two limbs fell away and the injunction was refused.
Applying Giella v Cassman Brown, the court found that although the deceased was registered proprietor in 2004, a restriction was in place pending Minister's appeals which were concluded in 2016 in the 1st Defendant's favour. The 1st Plaintiff had testified in the appeals, so the natural justice challenge was unsustainable. Having failed the first principle, the court did not consider irreparable loss or balance of convenience.
Natural justice challenge to Minister's appeal decision
The claim that the Plaintiffs were unaware of the appeal proceedings was contradicted by the record showing the 1st Plaintiff testified in two of the three appeals.
The gravamen of the suit was that the deceased was deprived of the land without being heard. However, the appeal proceedings exhibited by the 1st Defendant showed the 1st Plaintiff, son of the deceased, testified before the 2nd Defendant, and Felidah Kairu Ngune, the alleged seller, was also party and lost. No prima facie violation of natural justice was made out.
Unclean hands and equitable relief
Plaintiffs distributed the restricted suit property through succession proceedings during the pendency of the appeals, amounting to bad faith disentitling them to an injunction.
During the restriction and pendency of the appeals, the Plaintiffs conducted succession proceedings purporting to distribute the suit property among beneficiaries. The court found this was an attempt to steal a match on the 1st Defendant and render the appeal outcome nugatory, disentitling them to equitable relief.
Order of inhibition under section 68 of the Land Registration Act
Refused because the discretion was not exercised in the Plaintiffs' favour absent a prima facie case.
Although the court has discretion to grant inhibition to prevent dealings with suit property for a limited period or until determination of the suit, that discretion was not exercised because the Plaintiffs had not demonstrated a prima facie case with probability of success.
Costs
The 1st Defendant, as the successful party, was awarded the costs of the application.
Costs follow the event under section 27 of the Civil Procedure Act unless the court directs otherwise for good reason. No good reason was found to deny the successful 1st Defendant her costs, and the 2nd and 3rd Defendants did not participate in the application.
Legal principles established
#- Where Parliament has provided a mechanism for resolution of a dispute, that process ought to be strictly followed; Minister's appeals under the Land Adjudication Act are final subject to supervisory jurisdiction of superior courts.
- A party who conducts dealings over suit property in bad faith during the pendency of appeals, knowing the outcome could go either way, comes to court with unclean hands and is disentitled to equitable remedies.
- Costs follow the event under the proviso to section 27 of the Civil Procedure Act.
Court orders
#- 1.The Plaintiffs' notice of motion dated 25th June 2020 is dismissed in its entirety.
- 2.Costs of the application are awarded to the 1st Defendant only.
- 3.The interim orders of inhibition in place are vacated.
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court under the Constitution and the Environment and Land Court Act (not expressly cited in the ruling); application brought under Article 40(2)(a) of the Constitution, Order 40 Rule 1 and Order 50 Rule 10 of the Civil Procedure Rules, sections 1A & 3A of the Civil Procedure Act and section 68(1) of the Land Registration Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Muriithi Ndambiri & another v Efureithi Irima Mugo & 2 others [2020] KEELC 651 (KLR)", Case Analysis (2020). Notice of motion dated 25th June 2020 in a suit commenced by plaint dated 24th August 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/651/eng@2020-10-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.