Samuel Kimintae Mparo & 5 others v Arvind Kanji Patel (Being Sued as the Administrator of the Estate of Kanji Naran Patel – Deceased) [2020] KEELC 1533 (KLR)
The bottom line
#A Kajiado court refused to protect land occupants who misled it about where they live, but ordered the missing land record rebuilt.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiffs are entitled to orders of injunction against the Defendant in respect to land parcel number Kajiado/Kaputiei South/44, pending the intended Appeal
- 2.Whether the Land Registrar should be directed to reconstruct the Green Card for Land parcel number Kajiado/Kaputiei South/44
Key legal issues
#Whether an injunction pending intended appeal should issue in favour of the Plaintiffs over the suit land
Dismissed. Although the Erinford jurisdiction exists, the Plaintiffs were not candid about their residence, claimed the adjoining parcel 45 as their home in a parallel suit, and annexed photographs never produced in evidence, amounting to abuse of court process and want of clean hands.
The court observed the Plaintiffs claimed occupation of the suit land from 1969, yet in a judgment in Machakos ELC Case No. 318 of 2009 involving the same Plaintiffs and 1st Plaintiff's evidence, they indicated they reside only on Kajiado/Kaputiei South/45. Both parcels resulted from subdivision of Kajiado/Kaputiei South/35. The court held the Plaintiffs had not fully disclosed where they reside and annexed photographs not produced at the hearing. Equitable relief therefore failed.
Whether the Land Registrar should be compelled to reconstruct the Green Card for Kajiado/Kaputiei South/44
Allowed. Section 33(5) of the Land Registration Act empowers the Registrar to reconstruct a lost or destroyed register, and sections 9 and 10 impose a duty to keep and furnish land records, which the Registrar had failed to do.
The Defendant is the registered proprietor of the suit land, and a certified copy of the Green Card was produced at the filing of the Originating Summons. After judgment the Green Card was found missing and the Land Registrar could not issue a search or reconstruct it without a court order. The court found the law mandates the Registrar to maintain and provide the records and granted the reconstruction order.
Legal principles established
#- Injunction is an equitable remedy and a party must come to court with clean hands; a litigant who is not candid with the court and abuses its process is disentitled to equitable relief such as an injunction pending appeal.
- Under sections 9 and 10 of the Land Registration Act the Land Registrar is mandated to keep and furnish land records, and under section 33(5) has power to reconstruct a lost or destroyed land register.
Court orders
#- 1.Plaintiffs' application dated 13th May, 2020 dismissed with costs to the Defendant
- 2.Land Registrar directed to reconstruct the Green Card in respect of LR No. Kajiado/Kaputiei South/44 within ninety (90) days from the date hereof
- 3.Costs of the Defendant's application dated 14th May, 2020 to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over applications arising from its own suit; orders directed to the Land Registrar under the Land Registration Act
Relief refused
#Injunction restraining the Defendant from evicting, demolishing structures, trespassing, or disposing of Kajiado/Kaputiei South/44 pending the intended Appeal
Plaintiffs failed to fully disclose where they reside (having also claimed Kajiado/Kaputiei South/45 as their home in the Machakos suit), annexed photographs not produced in evidence, and therefore did not come to equity with clean hands
Costs
Plaintiffs' application dismissed with costs to the Defendant; costs of the Defendant's application allowed with costs in the cause.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In the circumstances, I will proceed to dismiss the instant application with costs to the Defendant.
I direct the Land Registrar to reconstruct the Green Card in respect LR No. Kajiado/ Kaputiei South/ 44 within ninety (90) days from the date hereof. Costs will be in the cause.
injunction is an equitable remedy and he who comes to equity must come with clean hands
The Registrar shall have powers to reconstruct any lost or destroyed land register after making such enquiries as may be necessary and after giving due notice of sixty days in the Gazette.
Issues in the judgment
#The judgment recites that the Land Registrar 'was unable to reconstruct the Green Card without permission of the Court', yet section 33(5) of the Land Registration Act as quoted empowers the Registrar to reconstruct a lost register 'after making such enquiries as may be necessary and after giving due notice of sixty days in the Gazette', without reference to a court order.
The court's substantive judgment had found the Plaintiffs were not in adverse possession of the suit land, yet the Plaintiffs claimed they had been resident there since 1969, and the judgment elsewhere reproduces PW1's evidence in the Machakos suit that they had lived on the suit premises since 1969.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samuel Kimintae Mparo & 5 others v Arvind Kanji Patel (Being Sued as the Administrator of the Estate of Kanji Naran Patel – Deceased) [2020] KEELC 1533 (KLR)", Case Analysis (2020). Kajiado ELC (not specified in extract). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1533/eng@2020-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.