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ELCDismissed· [2020] KEELC 1943 (KLR)

Mary Nyokabi Murira v Zachary Gichiri Kariuki [2020] KEELC 1943 (KLR)

Environment and Land Court
25 June 2020
LGL. Gacheru
1,852 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Plaintiff sued the Defendant seeking a permanent injunction restraining him from entering, building on or interfering with Ballot Number 1439 within Nyakinyua Investments Limited, plus costs. She averred she purchased the property on 24th October 2008 from Rosemary Marugu Njuki, paid transfer and title processing fees, but the Defendant encroached, erected a perimeter wall and began constructing a permanent house. The Defendant denied the claim, asserting his wife, Tabitha Njanja Gichiri, is the registered owner of L.R Ruiru/Mugutha Block 1/T.1439, and that he was wrongly sued. At trial, the Plaintiff produced a chain of documents establishing the root of her title from 1988. The Court found no evidence that L.R 1439 and L.R T.1439 were distinct parcels, noting the Defendant's own search for L.R 1439 returned L.R T.1439, and held the properties were one and the same. However, since the registered owner, the Defendant's wife, was never joined as a party, the Court held that granting the injunction would amount to impeaching her registered title without affording her a hearing, contrary to the rules of natural justice. Relying on Edward Mwangi Irungu and Pashito Holdings, the Court found the joinder of the registered owner necessary, held the prayers unmerited, dismissed the suit entirely, and ordered each party to bear their own costs. Judgment was delivered virtually on 25th June 2020 pursuant to COVID-19 directions.

Key legal issues

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01

Identity of the suit property

Holding

The Court was satisfied that the property claimed by the Plaintiff (L.R 1439) and that occupied by the Defendant (L.R T.1439) are one and the same.

Reasoning

The Defendant claimed the Plaintiff was suing over the wrong parcel, as his wife's registered title was L.R T.1439 while she claimed L.R 1439. The Court found no evidence that the two were distinct, and the Defendant's own official search, conducted for L.R 1439, returned results for L.R T.1439, leading the Court to concur with the Plaintiff that the parcels are identical.

p. 2
02

Root of the Plaintiff's title

Holding

The Plaintiff proved the root of her title tracing back to 1988 through the chain of documents from Rosemary Marigu to herself.

Reasoning

The Plaintiff produced a sale agreement dated 24th October 2008, an ownership certificate for her vendor dated 1988, a transfer receipt, her own ownership certificate of 2009 and a title deed payment receipt of 2012, all relating to Ballot 1439. On this documentary chain the Court accepted that she had established the root of her title from the original allocation.

p. 2
03

Necessity of joining the registered owner before granting the injunction

Holding

The suit failed because the registered owner, Tabitha Njanja Gichiri, was not a party; her title could not be impeached without hearing her.

Reasoning

Although the Plaintiff proved her root of title, the Defendant's evidence showed his wife held registered title to the property. Granting an injunction would implicitly recognise the Plaintiff as legal owner and impeach that title. Natural justice required the registered owner be heard first, so the joinder was necessary and the prayers could not be granted.

p. 2

Legal principles established

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  • Relief against a registered owner of land cannot be granted where that owner has not been joined as a party; natural justice (audi alteram partem) requires that a person be heard before adverse orders are made against them.

Court orders

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  1. 1.The Plaintiff's suit is dismissed entirely
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 21 rule 1

Cases cited (2)

  • Edward Mwangi Irungu vs Chief Land Registrar & 3 others
    [2018] eKLR
  • Pashito Holdings Limited & Another vs Paul Ndungu & 2 Others
    [1197] eKLR (as printed)
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land ownership and occupation

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, "Mary Nyokabi Murira v Zachary Gichiri Kariuki [2020] KEELC 1943 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1943/eng@2020-06-25

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