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ELCOtherELC Case at Kajiado (involving land parcel Kajiado/Kaputiei South/44; originating summons filed 2013)· [2020] KEELC 1590 (KLR)

Samuel Kimintae Mparo & 5 others v Arvind Kanji Patel (Being Sued as the Administrator of the Estate of Kanji Naran Patel – Deceased) [2020] KEELC 1590 (KLR)

Environment and Land Court
29 July 2020
1,885 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan landowner who hides the truth from court loses his injunction, and a missing land title record must be rebuilt by the Registrar.

What this practically means

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Executive summary

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This judgment of the Environment and Land Court at Kajiado (Christine Ochieng J) determines two competing Notices of Motion arising after the court's earlier judgment dismissing the Plaintiffs' claim for adverse possession of land parcel Kajiado/Kaputiei South/44. The Plaintiffs, who lodged a Notice of Appeal on 6th May 2020, sought an injunction restraining the Defendant from evicting them, demolishing structures, trespassing on, selling, transferring or disposing of the suit land pending their intended appeal. The Defendant opposed, noting he had not applied for execution, that no Memorandum of Appeal was annexed, and that the photographs annexed were fresh evidence never produced at the hearing. The Defendant separately sought an order compelling the Land Registrar Kajiado to reconstruct the missing Green Card for the parcel, the Registrar being unable to reconstruct it without a court order. On the injunction, the court, on its own research, found a related Machakos judgment (Machakos ELC No. 318 of 2009) in which the same Plaintiffs claimed residence on parcel 45 from 1969, contradicting their claim of residence on parcel 44, and noted the annexed photographs were not produced in evidence. Applying the clean-hands doctrine, the court found the Plaintiffs lacked candour, abused the court process, and dismissed their application with costs. On the Green Card, the court applied sections 9, 10 and 33(5) of the Land Registration Act and allowed the Defendant's application, directing the Land Registrar to reconstruct the Green Card within ninety days, with costs in the cause. The judgment was delivered in open court at Kajiado on 29th July 2020.

Key legal issues

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01

Whether injunction pending appeal should issue in favour of the Plaintiffs

Holding

The application for injunction pending appeal was dismissed because the Plaintiffs did not come to court with clean hands and abused the court process

Reasoning

Although the Plaintiffs cited authorities supporting injunctions pending appeal (Erinford Properties and Kenyan decisions), the court, on its own research, found a related Machakos judgment in which the same Plaintiffs claimed parcel 45 as their home from 1969, contradicting their claim of residence on the suit land (parcel 44). They also annexed photographs never produced in evidence. Their lack of candour and non-disclosure of their true residence disentitled them from equitable relief despite an arguable appeal claim.

p. 2
02

Whether the Land Registrar should be directed to reconstruct the Green Card for parcel Kajiado/Kaputiei South/44

Holding

The Defendant's application was allowed and the Land Registrar directed to reconstruct the Green Card within 90 days

Reasoning

The Green Card for the suit land was missing after judgment, preventing the registered proprietor from conducting a search. Sections 9 and 10 of the Land Registration Act mandate the Registrar to keep land records and furnish information to the public, which the Registrar failed to do. Section 33(5) empowers the Registrar to reconstruct lost or destroyed registers. Since the Defendant is the undisputed registered proprietor, he was entitled to a reconstructed Green Card.

p. 3

Legal principles established

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  • An injunction is an equitable remedy and a party seeking it must come to court with clean hands; unclean hands defeat entitlement to injunctive relief even where the cited authorities support injunctions pending appeal
  • Under section 33(5) of the Land Registration Act, the Registrar has power to reconstruct a lost or destroyed land register after due enquiries and after giving sixty days' notice in the Gazette, and the court may direct such reconstruction where the register is missing

Court orders

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  1. 1.Dismissal of the Plaintiffs' application dated 13th May 2020 seeking injunction pending appeal, with costs to the Defendant
  2. 2.Allowance of the Defendant's application dated 14th May 2020
  3. 3.Direction that the Land Registrar reconstruct the Green Card in respect of LR No. Kajiado/Kaputiei South/44 within ninety (90) days from the date of the order
  4. 4.Costs of the Defendant's application to be in the cause

Authorities

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Legislation

  • Land Registration Actsection 33(5)
  • Land Registration Actsection 9
  • Land Registration Actsection 10

Cases cited (5)

  • Erinford Properties Ltd Vs Cheshire County Council
    (1974) All ER 448
  • Beatrice Mumbe Ndwiga Vs David Muimi Mwinzi
    (2008) eKLR
  • George Otieno Gachie & Another V Judith Akinyi Bonyo & 5 Others
    (2017) eKLR
  • Christopher Kioi & Another (suing on behalf of the estate of Mwangi Kioi – Deceased) Vs Winnie Mukolwe, Julia Kirira & Hope Mutua (sued as administrators of the estate of David Nyamu Jonathan Kituri – deceased) & Another
    (2017) eKLR
  • Samuel Kimintae Mparo & 5 others v Mathare Investments & Properties Limited (Machakos ELC Case No. 318 of 2009 (OS))
    null
Jurisdiction invoked
Inherent powers of the Environment and Land Court under the Land Registration Act and Civil Procedure Act to entertain interlocutory applications in a suit pending intended appeal

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, "Samuel Kimintae Mparo & 5 others v Arvind Kanji Patel (Being Sued as the Administrator of the Estate of Kanji Naran Patel – Deceased) [2020] KEELC 1590 (KLR)", Case Analysis (2020). ELC Case at Kajiado (involving land parcel Kajiado/Kaputiei South/44; originating summons filed 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1590/eng@2020-07-29

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