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ELCPartially AllowedNotice of Motion dated 16th April, 2019 (main suit number not stated in judgment)· [2020] KEELC 2808 (KLR)

George Desmond Kweyama v Francis Mburu Kimani & Another [2020] KEELC 2808 (KLR)

Environment and Land Court
23 April 2020
1,827 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 alleging fraud blocked all dealings on his disputed Ngong plots through an inhibition, though the court left the title fight for full trial.

What this practically means

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Executive summary

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The Plaintiff, registered proprietor of land parcel Ngong/Ngong/13885, moved the Environment and Land Court by Notice of Motion dated 16th April 2019 seeking a temporary injunction restraining the Defendants from selling, leasing, charging, mortgaging or otherwise dealing with ten subdivisions arising from that parcel (Ngong/Ngong/62064; 62065; 62066; 63806-63812) pending determination of the suit. He alleged the 1st Defendant fraudulently and unprocedurally obtained registration of his land, subdivided it, and transferred one portion to the 2nd Defendant, which further subdivided it. The 2nd Defendant, through a director's replying affidavit, asserted it was a bona fide purchaser for value without notice, having conducted a search, obtained Land Control Board consent, executed a Sale Agreement on 10th December 2013 and developed the property. The 1st Defendant never entered appearance. Applying the Giella v Cassman Brown principles, the court found the Plaintiff had established a prima facie case: he still held his original title, and substantial allegations of fraud - investigated by the Land Registry in 2016 and 2017 - raise triable issues. Irreparable injury was demonstrated and the balance of convenience favoured the Plaintiff. However, because both parties stake competing claims and the 2nd Defendant claims heavy investment, the court declined the injunction as framed, instead directing the Land Registrar Kajiado North to register an inhibition against all dealings on the suit parcels pending hearing and determination of the suit. Costs were in the cause and parties were urged to comply with Order 11 and set the matter down for trial.

Key legal issues

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01

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

Holding

The Plaintiff did establish a prima facie case, as his claim over the suit land was not baseless and he still held the original title

Reasoning

The Plaintiff produced his original title deed to parcel Ngong/Ngong/13885 despite the alleged transfer to the 1st Defendant, who never entered appearance. The 2nd Defendant's title emanated from the Plaintiff's title. Fraud was alleged and reported to the Land Registry, which held hearings in 2016 and 2017 and found possibility of fraud. Substantial allegations of fraud raise triable issues, so the claim was not baseless.

p. 2
02

Whether the Plaintiff would suffer irreparable loss not compensable by damages

Holding

The alleged injuries were not speculative; the Plaintiff demonstrated the loss he would suffer if orders were not granted

Reasoning

Applying Nguruman Ltd v Jan Bonde Nielsen, the applicant must show actual, substantial and demonstrable injury not adequately compensable by damages. Both parties stake claim over the land, the 2nd Defendant's title emanated from the Plaintiff's title which he still holds, and the 2nd Defendant had subdivided the purchased land. The court found the alleged injuries were not speculative.

p. 2
03

Where the balance of convenience lies

Holding

The balance of convenience tilts in favour of the Plaintiff and preservation of the titles pending the outcome of the suit

Reasoning

From the evidence presented, the court was not in doubt that the balance of convenience favoured the Plaintiff and preservation of the various titles resulting from the subdivision of the suit lands. However, since both parties stake claim over the land with sanctity of title in dispute and the 2nd Defendant claiming heavy investment, the substantive issues were left for full trial, and an inhibition rather than an injunction was granted.

p. 2

Legal principles established

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  • Where fraud is alleged, the party alleging it must be given an opportunity to prove it, and substantial allegation of fraud raises a triable issue

Court orders

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  1. 1.The Land Registrar Kajiado North directed to register an inhibition against land parcel numbers Ngong/Ngong/62064; 62065; 62066; 63806; 63807; 63808; 63809; 63810; 63811 and 63812 of any dealings, lease, mortgage or charge pending the hearing and determination of the suit
  2. 2.Costs of the application to be in the cause
  3. 3.Parties urged to comply with Order 11 and set the suit down for hearing as soon as possible

Authorities

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Legislation

  • Environment and Land Court Actsections 3, 13(17)
  • Civil Procedure Actsections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 5 Rule 17; Order 40 Rules 1 and 10; Order 51 Rule 1; Order 11

Cases cited (13)

  • Giella Vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Alice Chemutai Too V Nickson Kipkurui Too & 2 Others
    (2015) eKLR
  • Taib Ali Taib V Ahmed Faud Amir & 6 Others
    (2014) eKLR
  • Naftali Ruth Kinygua V Patrick Thuita Gachure & Another
    (2015) eKLR
  • Pius Kipchirchir Kogo V Frank Kimeli Tenai
    (2018) eKLR
  • Kitamaiyu Limited V County Government – Kiambu & Another
    (2018) eKLR
  • Wachanga V Wakolakana Multipurpose Cooperative Society
    LLR No. 2408
  • Dr. Joseph Arap Ngok V Justice Moijo Ole Keiwua
  • Charles Karathe Kiarie & 2 Others V Administrators of the Estate of John Wallace Mathare (Deceased) & 3 Others
    (2015) eKLR
  • Eliud Mwendwa Ngui V Kavinya Ngui Mwetu & Josphat Muithi Kyanguu
    Civil Appeal No. 62 of 2009 at Kisumu (unreported)
  • Jasbir Singh Rai & 3 others V Tarlochan Singh Rai & 4 Others
    (2014) eKLR
  • UCB Vs Mukoome Agencies
    (1982) HCB22
  • Nguruman Ltd. Vs. Jan Bonde Nielsen
    CA No. 77 of 2012
Jurisdiction invoked
Sections 3 and 13(17) of the Environment and Land Court Act; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 5 Rule 17, Order 40 Rules 1 and 10 and Order 51 Rule 1 of the Civil Procedure Rules

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, "George Desmond Kweyama v Francis Mburu Kimani & Another [2020] KEELC 2808 (KLR)", Case Analysis (2020). Notice of Motion dated 16th April, 2019 (main suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2808/eng@2020-04-23

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