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ELCPartially AllowedELC Appeal No. 19 of 2018· [2020] KEELC 2848 (KLR)

James Mochama Kanisa v Mercy Njeri Ndirangu & 3 others [2020] KEELC 2848 (KLR)

Environment and Land Court
29 April 2020
3,215 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court allowed a landowner's appeal, blocking an auction of two Ngong plots until fraud allegations are fully tried.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Kajiado against the ruling of the Senior Resident Magistrate's Court at Ngong (Hon. Ogombe L. D (Ms)) delivered on 21st November 2018 in Ngong CMC ELC No. 55 of 2018, dismissing the Appellant's application for temporary and mandatory injunctions restraining the Respondents from auctioning, selling or interfering with LR No. Ngong/Ngong/26044 and LR No. Ngong/Ngong/26050. The Appellant, former registered owner and occupier of the two parcels, averred that his title deeds were lost in December 2015, that he never sold or transferred the properties to the 1st Respondent, and that the 1st Respondent fraudulently charged them to Equity Bank to secure a Kshs. 10 million loan which she defaulted on, prompting an intended public auction advertised in the Daily Nation. The court framed three issues: whether the Magistrate erred in finding two sets of titles existed; whether the Appellant met the Giella v Cassman Brown conditions for a temporary injunction; and whether the appeal was merited. The court found the Magistrate erred on both counts: no party pleaded two sets of titles, and fraud allegations, uncontroverted by the 1st Respondent, established a prima facie case without requiring proof of prosecution at the interlocutory stage. Irreparable harm was shown as the Appellant resided on the properties, and the balance of convenience favoured him. The appeal was allowed, the subordinate court ruling set aside in its entirety, a temporary injunction issued, and costs of the appeal made to abide the outcome of the lower court suit. Judgment delivered on 29th April 2020 by Christine Ochieng, J.

Key legal issues

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01

Whether two sets of titles existed as found by the trial Magistrate

Holding

The Magistrate erred; no party pleaded two sets of titles

Reasoning

On perusal of the Supporting and Replying affidavits and annexures, no party pleaded the existence of two sets of titles to the suit properties, so the trial Magistrate's finding to that effect was an error.

p. 2
02

Prima facie case for temporary injunction

Holding

Appellant established a prima facie case; fraud allegations suffice at interlocutory stage without proof of prosecution

Reasoning

The Appellant was undisputedly the registered owner prior to transfer to the 1st Respondent and remained in occupation. His averments that he never sold or transferred the properties were uncontroverted as the 1st Respondent did not respond. Fraud allegations at interlocutory stage raise a prima facie case without needing proof of prosecution.

p. 3
03

Irreparable harm and balance of convenience

Holding

Irreparable harm shown and balance of convenience tilts in favour of the Appellant

Reasoning

The Appellant resides on the suit properties with his family and a semi-permanent house existed on one parcel; his injuries would not be speculative. With disputed ownership and fraud allegations, damages would not be adequate. He was the initial owner and reported loss of titles to Police, and the 1st Respondent did not controvert his averments.

p. 4

Legal principles established

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  • Allegations of fraud must be strictly proved, though not beyond reasonable doubt; something more than a mere balance of probabilities is required
  • Where there are allegations of fraud at an interlocutory stage, a prima facie case is raised and the substratum of the suit ought to be preserved pending determination

Court orders

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  1. 1.Appeal allowed and the ruling including order of the subordinate court issued on 21st November, 2018 in CMC's NGONG ELC No. 55 of 2018 set aside in its entirety
  2. 2.Temporary injunction issued restraining the Respondents, their agents and/or servants from selling, transferring, alienating or otherwise interfering with LR No. NGONG/NGONG/26044 and LR No. NGONG/NGONG/26050 pending hearing and determination of CMC's NGONG ELC No. 55 of 2018
  3. 3.Costs of the Appeal to abide the outcome of CMC's NGONG ELC No. 55 of 2018

Authorities

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Cases cited (12)

  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 Others
    (2015) eKLR
  • Arthi Highway Developers Limited v West End Butchery Limited & 6 others
    (2015) eKLR
  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    CA No. 77 of 2012
  • Mrao v First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Zebak Limited v Nadem Enterprises Limited
    (2016) eKLR
  • Nairobi Mary Ngaru v Family Bank Ltd & 2 others
    (2014) eKLR
  • Philes Nyokabi Kamau v Industrial & Commercial Development Corporation
    (2017) eKLR
  • Viro Energy (K) Ltd v Maloba Petrol Station Ltd and Others
    (2013) KLR
  • R.G. Patel v Lalji Makanji
    (1957) EA 314
  • Ngugi Gichune Njogore v Co-operative Bank Ltd & another
    [2015] eKLR
  • Nguruman Ltd. v Jan Bonde Nielsen
    (2014) eKLR
On appeal from
Senior Resident Magistrate's Court at Ngong
Ngong CMC ELC No. 55 of 2018
Jurisdiction invoked
Appeal from the Senior Resident Magistrate's Court to the Environment and Land Court (statutory first 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, "James Mochama Kanisa v Mercy Njeri Ndirangu & 3 others [2020] KEELC 2848 (KLR)", Case Analysis (2020). ELC Appeal No. 19 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2848/eng@2020-04-29

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