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ELCAllowedNot stated in the judgment (Environment and Land Court suit, Thika)· [2020] KEELC 967 (KLR)

Mapema Holdings Limited v Thika Dairies Limited, Patrick Kariuki Muiruri, John Sebastian Muiruri, Chief Land Registrar Central Registry & Attorney General (Environment & Land Case 65 of 2019) [2020] KEELC 967 (KLR)

Environment and Land Court
22 October 2020
5,902 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~24 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked any sale or transfer of a Thika property, ruling the buyer's fraud-based claim was filed on time and not barred by earlier cases.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Thika (L. Gacheru, J) on a Notice of Motion dated 5th April 2019 by the Plaintiff, Mapema Holdings Limited, seeking a temporary injunction over L.R No. 4953/2414 in Thika Municipality, and a Notice of Preliminary Objection dated 13th May 2019 by the 1st to 3rd Defendants. The Plaintiff claimed to have purchased the property from the 1st Defendant for Kshs. 9,000,000 under a sale agreement dated 10th March 2008, to have been registered as owner in 2012, and to have had its transfer fraudulently cancelled by the 4th Defendant (the Land Registrar) on 4th October 2016, after which a provisional certificate was issued to the 1st Defendant. The Defendants contended the sale failed for non-payment, the transfer was forged, the contract was rescinded, and the suit was time-barred and res judicata given prior litigation (ELC 1400 of 2013, JR Misc. 6 of 2017 and pending appeals). The court held that limitation is a valid preliminary objection being a pure point of law, but res judicata is not, as it requires probing of evidence. On the merits of the objection, the suit, founded on alleged fraud, fell within Section 26 of the Limitation of Actions Act and was filed within three years of the alleged fraud. The court further found the suit not res judicata since the fraud issue was never heard and finally determined in the prior suits, one of which was struck out and the other a judicial review that only addressed process. Applying Giella v Cassman Brown, the court found a prima facie case, irreparable injury not compensable in damages, and balance of convenience favouring preservation of the status quo. The preliminary objection was dismissed with costs and the application allowed; the Plaintiff also received costs of the application.

Key legal issues

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01

Whether the Notice of Preliminary Objection was a proper preliminary objection

Holding

The limitation limb qualified as a preliminary objection as a pure point of law, but the res judicata limb did not, since it required ascertainment of facts; the objection on limitation was nonetheless dismissed on its merits.

Reasoning

The court applied Mukisa Biscuits and Oraro v Mbaja to hold that limitation raises a pure point of law determinable without probing evidence, so it satisfied the test. However, res judicata requires the court to ascertain facts and probe evidence, and therefore cannot be raised as a preliminary objection. On limitation, since the suit was founded on alleged fraud occurring on 4th October 2016 and was filed on 5th April 2019, Section 26 applied and the suit was within time.

p. 5
02

Whether the suit is res judicata

Holding

The suit is not res judicata because the issue of fraud was never heard and finally determined in the prior suits.

Reasoning

ELC 1400 of 2013 was struck out without determination on the merits - the court there held the plaintiff's claim was spent after the Land Registrar cancelled the transfer. Misc. 6 of 2017 was a judicial review matter which only deals with process, not merits, and expressly left the question of fraud to a civil suit. The pending appeals were withdrawn, so at most those issues were sub judice, not res judicata. The conjunctive elements of Section 7 of the Civil Procedure Act were therefore not satisfied.

p. 6
03

Whether the Plaintiff was entitled to a temporary injunction

Holding

The Plaintiff established a prima facie case, likely irreparable loss not compensable by damages, and the balance of convenience favoured preserving the status quo; the application was allowed.

Reasoning

Applying Giella v Cassman Brown as restated in Kibutiri v Kenya Shell, the court found the sale agreement and full payment allegations corroborated by the advocate who acted for both parties, giving the Plaintiff an apparent right over the suit property. Following Niaz Mohammed Janmohammed and Olympic Sports House, no amount of money could compensate infringement of the property right. The balance of convenience tilted toward preserving the status quo existing before the alleged wrongful cancellation.

p. 7

Legal principles established

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  • A preliminary objection must raise a pure point of law, argued on the assumption that all facts pleaded by the other side are correct, and cannot be raised where facts must be ascertained or discretion exercised.
  • A plea of limitation is a proper preliminary objection because it raises a pure point of law requiring no ascertainment of facts.
  • Res judicata cannot properly be raised by way of preliminary objection because it requires probing of evidence.
  • Under Section 26 of the Limitation of Actions Act, where an action is based on fraud, time does not begin to run until the plaintiff discovered or could with reasonable diligence have discovered the fraud.
  • The elements of res judicata must be satisfied conjunctively, including that the former suit was heard and finally determined between the same parties litigating under the same title.
  • The three Giella v Cassman Brown principles govern the grant of a temporary injunction: prima facie case, irreparable injury not compensable by damages, and balance of convenience.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 13th May 2019 is dismissed with costs
  2. 2.The Notice of Motion Application dated 5th April 2019 is allowed entirely in terms of prayers no. 2 and 4 (temporary injunction restraining the Defendants from leasing, transferring, alienating, developing or dealing with L.R No. 4953/2414 pending hearing of the suit)
  3. 3.The Plaintiff/Applicant is entitled to costs of the Application

Authorities

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Legislation

  • Land Registration ActSection 79(2)
  • Limitation of Actions Act (Cap 22, Laws of Kenya)Section 4 / Section 4(1)
  • Limitation of Actions ActSection 26(c)
  • Civil Procedure ActSection 7
  • Civil Procedure RulesOrder 21 rule 1

Cases cited (17)

  • Mukisa Biscuits Manufacturing Co. Ltd vs West End Distributors Ltd
    (1969) EA 696
  • Quick Enterprises Ltd vs Kenya Railways Corporation
    Kisumu HCCC No. 22 of 1999
  • Avtar Singh Bhamra & Another vs Oriental Commercial Bank
    Kisumu HCCC No. 53 of 2004
  • Oraro vs Mbaja
    (2005) 1 KLR 141
  • Henry Wanyama Khaemba vs Standard Chartered Bank Ltd & Another
    (2014) eKLR
  • George Kamau Kimani & 4 Others vs County Government of Trans Nzoia & Another
    (2014) eKLR
  • Edward Moonge Lengusuranga vs James Lanaiyara & another
    [2019] eKLR
  • The Independent Electoral and Boundaries Commission vs Maina Kiai & 5 others
    Nairobi CA Civil Appeal No. 105 of 2017 [2017] eKLR
  • Airland Tours and Travel Ltd vs National Industrial Credit Bank
    Milimani HCCC No. 1234 of 2003
  • Giella vs Cassman Brown Co Ltd
    (1973) EA 358
  • Kibutiri vs Kenya Shell
    Nairobi High Court Civil Case No. 3398 of 1980 (1981) KLR
  • E.A Industries vs Trufoods
    (1972) EA 420
  • Mrao Ltd vs First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Paul Gitonga Wanjau vs Gathuthi Tea Factory Co. Ltd & 2 Others
    Nyeri HCC No. 28 of 2015
  • Niaz Mohammed Janmohammed vs Commissioner for Lands & 4 Others
    (1996) eKLR
  • Olympic Sports House Ltd vs School Equipment Centre Ltd
    (2012) eKLR
  • Agnes Adhiambo Ojwang vs Wycliffe Odhiambo Ojijo
    Kisumu HCCC No. 205 of 2000
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the suit property (L.R No. 4953/2414, Thika Municipality); no specific constitutional or statutory basis invoked for the court's jurisdiction

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, "Mapema Holdings Limited v Thika Dairies Limited, Patrick Kariuki Muiruri, John Sebastian Muiruri, Chief Land Registrar Central Registry & Attorney General (Environment & Land Case 65 of 2019) [2020] KEELC 967 (KLR)", Case Analysis (2020). Not stated in the judgment (Environment and Land Court suit, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/967/eng@2020-10-22

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