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ELCAllowedNotice of Motion dated 8th July 2019 (suit at Mombasa)· [2020] KEELC 1674 (KLR)

Mwanajuma Nigatembo alias Mwanajuma & Mbwana Noor Gakweli v Mwaroga Nassoro Nassoro, Mohamed Juge Daleno, Ismael Ware Godana, Mohamed Ware Godana, Lands Registrar Kwale & Attorney General (Environment & Land Case 129 of 2019) [2020] KEELC 1674 (KLR)

Environment and Land Court
15 July 2020
CYC.K. Yano
1,646 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A Kwale woman whose co-owned land was subdivided and sold without her consent stopped all further dealings through a court injunction.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 8th July 2019 by the plaintiff, Mwanajuma Nigatemno alias Mwanajuma Mbwana Noor Gakweli, seeking a temporary injunction against the five defendants over plots KWALE/WAA/2101, 2102 and 2103, subdivisions arising from the original parcel KWALE/WAA/115 in Waa Adjudication Section, Kwale County. The applicant averred that the original parcel was adjudicated and registered in 1975 in the joint names of herself, Suleiman Omari Mwabweta and Nironga Omari Mwabweta, each holding a third share. After both co-owners died, the green card was altered through a series of entries between 2012 and 2018, with the 1st respondent eventually becoming registered proprietor following an order in Kadhi's Court Succession Cause No. 119 of 2011, and the subdivided plots subsequently transferred to the 2nd, 3rd and 4th respondents. The applicant contended the dealings were fraudulent and carried out without her knowledge. The 2nd, 3rd and 4th respondents countered that they purchased the plots from the 1st respondent as bona fide purchasers for value without notice of fraud. Applying the Giella v Cassman Brown conditions and the Mrao definition of a prima facie case, the court found the applicant had established a prima facie case with probability of success, that she would suffer irreparable loss not compensable in damages, and that the balance of convenience favoured maintaining the status quo. The court allowed the motion, granted the injunction against all five defendants, directed the OCS Kwale to ensure compliance, and awarded the plaintiff the costs of the application. Allegations of fraud were reserved for trial.

Key legal issues

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01

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

Holding

Yes - the applicant showed her right over the suit property, originally registered in her joint name, and the 1st defendant did not rebut her contention that he fraudulently acquired, subdivided and disposed of the land without her knowledge.

Reasoning

There was no dispute that the suit property was originally registered in the joint names of the applicant and two others. The chain of subsequent dealings traced through Kadhi's Succession Cause No. 119 of 2011 and subsequent sub-division entries appeared irregular. The 1st defendant did not rebut the fraud allegation. Allegations of fraud being weighty, they were reserved for trial, but on the material presented the applicant had a right apparently infringed, satisfying the Mrao test.

p. 2
02

Whether the applicant would suffer irreparable injury not compensable in damages

Holding

Yes - further alienation, construction or waste would cause loss not quantifiable in damages, and the balance of convenience favoured maintaining the status quo.

Reasoning

The court held that if the subdivided plots were further alienated, disposed of, constructed on or wasted, the applicant would suffer irreparable loss which could not be quantified in damages. Even on the balance of convenience, the court found it tilted towards maintaining the status quo pending full hearing. All three Giella conditions were therefore satisfied.

p. 2

Legal principles established

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  • Conditions for grant of a temporary injunction as laid down in Giella v Cassman Brown
  • Definition of a prima facie case in civil applications
  • Allegations of fraud are weighty and cannot be resolved on interlocutory applications

Court orders

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  1. 1.An injunction restraining the 1st, 2nd, 3rd, 4th and 5th defendants/respondents from trespassing on, wasting, further constructing on, alienating or otherwise interfering with plots KWALE/WAA/2101, KWALE/WAA/2102 and KWALE/WAA/2103 pending the hearing and determination of the suit
  2. 2.The Officer Commanding Station (OCS) Kwale Police Station to ensure compliance with the order
  3. 3.The plaintiff to have the costs of the application

Authorities

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Cases cited (2)

  • Giella –v– Cassman Brown & Company Limited
    (1973) EA 358
  • Mrao –v– First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
Jurisdiction invoked
Original civil jurisdiction over land disputes (Environment and Land Court) - interlocutory application for temporary injunction

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, "Mwanajuma Nigatembo alias Mwanajuma & Mbwana Noor Gakweli v Mwaroga Nassoro Nassoro, Mohamed Juge Daleno, Ismael Ware Godana, Mohamed Ware Godana, Lands Registrar Kwale & Attorney General (Environment & Land Case 129 of 2019) [2020] KEELC 1674 (KLR)", Case Analysis (2020). Notice of Motion dated 8th July 2019 (suit at Mombasa). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1674/eng@2020-07-15

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