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ELCPartially AllowedELC Civil Suit (Mandera) – Notice of Motion dated 14th February 2020· [2020] KEELC 861 (KLR)

Mohamed Ahmed Dahia & 3 others v Abbey Hassan Maalim [2020] KEELC 861 (KLR)

Environment and Land Court
30 October 2020
2,159 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 court stopped a Mandera water plant owner from further dealings with disputed land, holding that registered title documents stand until fraud is actually proven.

What this practically means

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Executive summary

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This was a Notice of Motion dated 14th February 2020 in which the plaintiffs, registered owners of parcels of land numbers 31235 to 31241 in Mandera township, sought a temporary injunction restraining the defendant from trespassing on the suit property, where he had begun erecting pillars for a water plant. The defendant opposed the application, averring that he was allotted parcel BK02 by the defunct Mandera County Council in 2009 through Barwaqo Water Company, was issued an allotment and ownership certificate by the Mandera County Government in 2015, has possessed the land since 2009 and paid rates since 2013, and that the plaintiffs' titles are forgeries bearing Machakos-style numbering. He further relied on prior proceedings, Civil Suit No. 7 of 2014 and Criminal Case No. 4 of 2017. The court applied the Giella v Cassman Brown principles. Applying section 26 of the Land Registration Act, it held that certificates of title are prima facie evidence of absolute and indefeasible ownership, challengeable only on proof of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition; the respondent's forgery allegations were unsubstantiated at that stage and did not impeach the titles. It found a prima facie case with probability of success, that irreparable loss would flow from continued construction of a permanent water plant, and that the balance of convenience favoured granting the injunction. The court allowed the application in terms of prayer (c), restraining the defendants from any further dealing with the suit property pending hearing and determination of the suit, with costs in the main cause.

Key legal issues

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01

Whether the applicants' titles, alleged by the respondent to be forgeries, established a prima facie case

Holding

The certificates of title were prima facie evidence of ownership; the respondent's forgery allegations were unsubstantiated at the interlocutory stage and did not impeach the titles

Reasoning

Section 26 of the Land Registration Act directs courts to take a certificate of title as prima facie evidence of absolute and indefeasible ownership. A title can only be vitiated by fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition. Although the respondent alleged forgery, the material before the court did not prima facie establish those vitiating factors; such issues could only be proved at trial.

p. 3
02

Whether the balance of convenience favoured granting the injunction

Holding

The balance of convenience favoured granting the injunction, since denying it would allow the respondent to continue erecting a water plant and expose him to immense loss if the plaintiffs succeeded

Reasoning

The court applied the settled principle that where in doubt it decides on the balance of convenience. It found that refusing the injunction would permit continued construction of a permanent water plant, and if the plaintiffs ultimately succeeded the respondent would suffer immense loss; preserving the status quo pending trial was the greater justice.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence of ownership and may only be impeached on proof of fraud, misrepresentation, or that it was acquired illegally, unprocedurally or through a corrupt scheme
  • A prima facie case in civil matters is one in which a tribunal properly directing itself would conclude there exists a right apparently infringed by the opposite party so as to call for an explanation

Court orders

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  1. 1.The defendants are restrained from continuing with any further dealing of the suit property pending hearing and determination of the suit
  2. 2.Costs of the application shall be in the main cause

Authorities

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Legislation

  • Land Registration Actsection 26
  • Evidence Actsection 107
  • Civil Procedure RulesOrder 40 Rule 1(a) and (b)

Cases cited (10)

  • Giella vs Cassman Brown & Co. Ltd
    (1973) EA 358
  • Mrao Limited v First American Bank of Kenya Ltd
    (2003) KLR 125
  • Suleiman v Amboseli Resort Ltd
    (2004) KLR 589
  • Sinohydro Corporation Limited vs GC Retail Limited & Another
    (2016)
  • Kibiro Wagoro Makumu vs Francis Nduati Macharia & Another
    (2018) eKLR
  • Muiruri v Bank of Baroda (Kenya) Limited
    (2001) eKLR
  • Ngurumani Limited vs Jan Bonde Nielsen & 2 others
    (2014) eKLR
  • Vini Investments Limited vs James Mburu Ndua
    (2013) eKLR
  • National Land Commission vs Afrison Export Import Limited & 10 others
    (2019) eKLR
  • Jan Bolden Nielsen vs Herman Philips Steyn
    (2012) eKLR
Jurisdiction invoked
Article 162(2)(b) constitutional jurisdiction of the Environment and Land Court (inherent jurisdiction over land disputes); interlocutory relief under Order 40 of the Civil Procedure Rules and section 26 of the Land Registration 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, "Mohamed Ahmed Dahia & 3 others v Abbey Hassan Maalim [2020] KEELC 861 (KLR)", Case Analysis (2020). ELC Civil Suit (Mandera) – Notice of Motion dated 14th February 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/861/eng@2020-10-30

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