Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of Motion dated 17th December 2018 in the plaint filed 17th December 2018 (Nakuru ELC)· [2020] KEELC 2934 (KLR)

Linda Chepkorir Ruto & another v Sally Cherutich & 5 others [2020] KEELC 2934 (KLR)

Environment and Land Court
30 April 2020
DOD. O. Ohungo
2,107 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Kenyan court froze all dealings with a Nakuru plot, confirming that an old allotment letter is not proof of land ownership.

What this practically means

#

Executive summary

#
The plaintiffs, registered proprietors of Nakuru Municipality/Block 23/728 since 2nd December 2010, sought an interlocutory injunction restraining the defendants from dealing with, alienating or trespassing upon the suit property pending trial. They contended the 1st defendant's title, issued in September 2018, was fraudulently procured, and that the 2nd defendant was purchasing the property from her. The 1st and 2nd defendants opposed, relying on the 1st defendant's 1997 letter of allotment and 2018 certificate of lease, and invoking section 26(1) of the Land Registration Act; the 3rd to 5th defendants did not oppose. Applying the Giella v Cassman Brown test sequentially as explained in Nguruman Limited v Jan Bonde Nielsen, the court found the applicants' certificate of lease was earlier in time than the 1st defendant's, and that a letter of allotment is not title to land — the 1st defendant only paid the allotment sum in May 2018. The applicants therefore demonstrated a prima facie case with a probability of success. On irreparable harm, the applicants' account of possession since 2010 was unrebuted in substance, and land's special status in Kenya meant damages would be inadequate. The court issued the injunction restraining all defendants from dealing with the property pending determination of the suit, and awarded costs of the motion against the 1st and 2nd defendants. The ruling was delivered remotely on 30th April 2020 under the Chief Justice's COVID-19 Practice Directions.

Key legal issues

#
01

Prima facie case for interlocutory injunction

Holding

The applicants established a prima facie case because their certificate of lease (2nd December 2010) was earlier in time than the 1st defendant's (6th September 2018), and a letter of allotment is not title.

Reasoning

The applicants' certificate of lease was issued on 2nd December 2010 following a sale agreement of 2nd July 2010 and a transfer registered on 22nd November 2010. The 1st defendant's certificate arose from a lease dated 9th August 2018 and relied on a 1997 letter of allotment whose conditions were only paid for in May 2018. Since a letter of allotment confers no title, the applicants demonstrated an earlier and better claim on the face of the documents, satisfying the first Giella limb.

p. 2
02

Irreparable damage

Holding

Damages would not be an adequate remedy given the applicants' possession since 2010 and the special status of land in Kenya.

Reasoning

The applicants gave an account of possession from 2010, while the 1st and 2nd defendants did not sufficiently explain possession prior to 8th October 2018; indeed the 2nd defendant's own affidavit showed the applicants were in possession and had erected structures. Land being a precious and emotive factor of production in Kenya, the court concluded damages would be inadequate and preservation was necessary.

p. 3

Legal principles established

#
  • A letter of allotment is not title to land; the allottee must comply with all conditions of the offer before title issues.
  • The Giella conditions are applied as separate, sequential hurdles; if no prima facie case is established, the other limbs need not be considered.

Court orders

#
  1. 1.An injunction restraining the defendants/respondents jointly and severally, their agents and/or servants or anyone acting under their instructions, from alienating, selling, leasing, entering, being upon, encroaching and/or trespassing, interfering, wasting, constructing upon or howsoever dealing with Nakuru Municipality/Block 23/728 pending the hearing and determination of the suit
  2. 2.Costs of the Notice of Motion dated 17th December 2018 to be borne by the 1st and 2nd defendants

Authorities

#

Legislation

  • Land Registration Actsection 26(1)

Cases cited (7)

  • Mrao Limited vs First American Bank of Kenya Ltd
    [2003] KLR 125
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Airland Tours and Travel Ltd vs National Industrial Credit Bank, Nairobi (Milimani)
    High Court Civil Case No. 1234 of 2002
  • Giella –vs- Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Wreck Motor Enterprises v Commissioner of Lands & 3 others
    [1997] eKLR
  • Elizabeth Wambui Githinji & 29 others v Kenya Urban Roads Authority & 4 others
    [2019] eKLR
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act over disputes relating to land registered as Nakuru Municipality/Block 23/728

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Linda Chepkorir Ruto & another v Sally Cherutich & 5 others [2020] KEELC 2934 (KLR)", Case Analysis (2020). Notice of Motion dated 17th December 2018 in the plaint filed 17th December 2018 (Nakuru ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2934/eng@2020-04-30

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