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ELCDismissedNot stated in judgment (notice of motion dated 20th July 2018)· [2020] KEELC 2686 (KLR)

Fredrick Nzoika Musilu v Kennedy Ochieng Kimata & 2 others [2020] KEELC 2686 (KLR)

Environment and Land Court
14 May 2020
1,473 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to block a land sale because a letter of allotment cannot beat a registered title, and no fraud was proven.

What this practically means

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Executive summary

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The plaintiff, through her attorney Fredrick Nzioka Musilu, moved the court by notice of motion dated 20th July 2018 under Order 40 of the Civil Procedure Rules and Section 68 of the Land Registration Act, seeking a temporary injunction restraining the defendants from charging, transferring, selling, alienating or interfering with Title No. Nairobi/Block 118/773, an inhibition registered against the title, and oversight by the OCS Ruai Police Station. She relied on a letter of allotment for a 99-year term effective 1st January 1994, contending the 2nd and 3rd defendants unlawfully issued a certificate of lease to the 1st defendant. The 1st defendant opposed, asserting he lawfully acquired registered title by transfer, had paid rates and rents since 2015 and occupied the property since 2016; the 2nd defendant filed grounds of opposition; the 3rd defendant took no part. The court framed two issues: whether the application met the threshold for a temporary injunction, and costs. Applying Giella v Cassman Brown and Mrao v First American Bank, and Section 26(1) of the Land Registration Act, the court held the plaintiff, holding only an allotment letter, failed to establish a prima facie case with a probability of success, adduced no evidence of fraud or unlawful acquisition of the 1st defendant's registered title, and demonstrated no irreparable loss. The balance of convenience favoured the registered owner. The application was dismissed with costs to abide the outcome of the main suit.

Key legal issues

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01

Whether the plaintiff established a prima facie case for temporary injunction

Holding

No - the plaintiff failed to demonstrate she was the registered owner and the 1st defendant holds registered title

Reasoning

The court applied Giella v Cassman Brown and Mrao Ltd v First American Bank on the test for a prima facie case. The plaintiff held only a letter of allotment, not registration, while the 1st defendant was the registered proprietor under a certificate of title protected by Section 26(1) of the Land Registration Act. No evidence of fraud or unlawful acquisition was adduced.

p. 2
02

Whether the plaintiff would suffer irreparable loss and where the balance of convenience lies

Holding

The plaintiff failed to demonstrate any loss; the balance of convenience favoured the registered owner

Reasoning

Having failed on the first Giella limb, the applicant still had to show irreparable harm not compensable by damages. The court found she adduced no evidence of the loss she would suffer, and since the 1st defendant was the registered owner in occupation, the balance of convenience tilted in his favour. The application was therefore dismissed.

p. 3

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition
  • An applicant for an injunction must make a full disclosure of relevant facts and show a legal or equitable right requiring protection
  • Fraud must be specifically pleaded and proved to a standard above a balance of probabilities

Court orders

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  1. 1.The notice of motion dated 20th July 2018 is dismissed for lack of merit
  2. 2.The costs of the application to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure Rules 2010Order 40 rules 1A, 2, 3 and 4
  • Civil Procedure Act (Cap 21)Sections 1A, 1B, 3 and 3A
  • Land Registration Act No. 3 of 2012Sections 68 and 26(1)

Cases cited (12)

  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Ltd vs Jan Bonde Nielsen
    [2014] eKLR
  • Mrao Ltd vs First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
  • Joseph Mbugua Gichanga vs Cooperative Bank of Kenya Ltd
    HCCC No. 74 of 2000
  • Films Rover International Ltd vs Cannon Film Sales Ltd
    [1986] ALL ER 772
  • Dupoto Group Limited vs Kenya Airports Authority & Another
    [2013] eKLR
  • Trust Bank Limited vs Amin Company Limited & Another
    [2000] KLR 164
  • Gitwanys Investments Ltd vs Tajmal Limited & 3 others
    [2006] eKLR
  • Arthi Highway Developers Ltd vs West End Butchery Ltd & Others
  • Jane Kemunto Mayaka vs Municipal Council of Nakuru & Others
    HCCC 124 of 2005
  • Nakuru Industries Ltd vs S. S Mehta & Sons
    [2016] eKLR
  • Kenleb Cons Ltd vs New Gatitu Services Station Ltd & Another
    [1990] KLR 557
Jurisdiction invoked
Order 40 rules 1A, 2, 3 and 4 of the Civil Procedure Rules 2010; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act (Cap 21); Section 68 of the Land Registration Act No. 3 of 2012

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, "Fredrick Nzoika Musilu v Kennedy Ochieng Kimata & 2 others [2020] KEELC 2686 (KLR)", Case Analysis (2020). Not stated in judgment (notice of motion dated 20th July 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2686/eng@2020-05-14

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