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ELCDismissedNot stated in judgment (Notice of Motion dated 30th June 2020 in pending suit)· [2020] KEELC 1130 (KLR)

Phoebe A. Mugo v Atieno Amadi & aother [2020] KEELC 1130 (KLR)

Environment and Land Court
30 September 2020
3,134 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to stop the university from using land it had occupied since 2006, showing that a title certificate alone does not guarantee winning an injunction in Kenya.

What this practically means

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Executive summary

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The plaintiff, Phoebe A. Mugo, moved the Environment and Land Court at Kisumu by Notice of Motion dated 30th June 2020, anchored on Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking a temporary injunction restraining Prof. Atieno Anne Ndede Amadi and Great Lakes University of Kisumu from trespassing upon, constructing on or interfering with L.R No. 11280/9 (I.R 159219/4), and from harassing her, pending the hearing of the suit, with an order that the OCS Kibos Police Station enforce the orders. She relied on her registration as proprietor following transmission from her late mother's estate in Bondo Principal Magistrate's Court Succession Cause No. 83 of 2017. The 1st defendant, the University's Vice-Chancellor, deponed in reply that the deceased mother had in 2006 obtained Land Control Board consent, executed a transfer to TROPICAL INSTITUTE OF COMMUNITY HEALTH DEVELOPMENT (TICH), the sponsors of the 2nd defendant, handed over possession, and received part payment; registration failed only because the original survey deed plan was unavailable. The plaintiff did not file submissions in reply, and a reference to a supplementary affidavit and a prior judgment was unsupported as those documents were never filed. Applying the Giella v Cassman Brown test sequentially as explained in Nguruman, the court held that the certificate of title is only prima facie evidence, that the un-rebutted 2006 transfer and possession by the defendants defeated any prima facie case, that the property was improperly included in the succession estate, and that the suit may be statute-barred. The motion was dismissed with costs in the cause.

Key legal issues

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01

Whether the plaintiff established a prima facie case with a probability of success

Holding

No. The certificate of title annexed showed her late mother as registered owner, and un-rebutted evidence showed the mother had in 2006 obtained land control consent, executed a transfer to TICH and handed over possession to the 2nd defendant

Reasoning

Although Section 26 of the Land Registration Act makes a Certificate of Title evidence of ownership, it is only prima facie evidence. The un-rebutted replying affidavit showed the deceased mother relinquished her interest in 2006 and possession passed to the 2nd defendant. The property was therefore improperly included in the succession estate. The plaintiff thus had no right threatened with violation. Also, the suit may be statute-barred since possession began in 2006 and the suit was filed in 2020.

p. 3
02

Whether an injunction could issue where the alleged event has already occurred

Holding

No. The trespass and development complained of had already occurred, and courts do not grant injunctions overtaken by events

Reasoning

The plaintiff herself confirmed the 2nd defendant's structures on the land and its possession since 2006. Following ESSO Kenya Ltd v Mark Makwatta and Stephen Mbugua Mwagiru, an injunction cannot be granted where the event has been overtaken by events. Granting the orders would evict the party in possession and amount to a mandatory injunction at interlocutory stage, permissible only in rare compelling circumstances, which were absent here.

p. 4

Legal principles established

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  • A Certificate of Title under Section 26 of the Land Registration Act is only prima facie evidence of ownership which can be challenged
  • The Giella test must be applied sequentially; if no prima facie case is established, irreparable injury and balance of convenience need no consideration
  • An interlocutory injunction will not be granted where its effect would be to evict a party in possession, amounting to a final order before trial
  • A mandatory injunction at interlocutory stage is granted only in rare cases with compelling circumstances

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 30th June 2020 is dismissed
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1 and 2; Order 51 Rule 1
  • Civil Procedure ActSection 3A
  • Land Registration ActSection 26

Cases cited (8)

  • GIELLA .V. CASSMAN BROWN & CO LTD
    1973 E.A. 358
  • MRAO .V. FIRST AMERICAN BANK OF KENYA LTD & OTHERS
    C.A CIVIL APPEAL NO 39 OF 2002 [2003 eKLR]
  • NGURUMAN LTD .V. JAN BONDE NIELSEN & OTHERS
    C.A CIVIL NO 77 OF 2012
  • FILMS ROVER INTERNATIONAL .V. CANNON FILM SALE LTD
    1986 3 ALL. E.R 772
  • ESSO KENYA LTD .V. MARK MAKWATTA
    C.A CIVIL APPEAL No 69 of 1991
  • STEPHEN MBUGUA MWAGIRU .V. MUTHAIGA COUNTY CLUB LTD & OTHERS
    C.A CIVIL APPEAL NO 100 OF 2014 [2018 eKLR]
  • KENYA BREWERIES LTD & ANOTHER .V. WASHINGTON OKEYO
    2002 I.EA 109
  • AMERICAN CYANAMID .V. ETHICON LIMITED
    1975 A C 396
Jurisdiction invoked
Order 40 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and the inherent powers of the Court

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, "Phoebe A. Mugo v Atieno Amadi & aother [2020] KEELC 1130 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 30th June 2020 in pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1130/eng@2020-09-30

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