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ELCPartially AllowedNotice of Motion dated 19th August 2019 (suit arising from plaint dated 22nd August 2016)· [2020] KEELC 3110 (KLR)

Lazarus Mithambo Ndoro v Gichobi George [2020] KEELC 3110 (KLR)

Environment and Land Court
13 March 2020
ECE.C. Cherono
1,466 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land buyer whose title was cancelled after a Tribunal process won a court order freezing all dealings on the disputed land until the case is heard.

What this practically means

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Executive summary

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This was a Notice of Motion dated 19th August 2019 by the plaintiff, Agnes Maina, seeking (i) a prohibitory order to be registered against L.R. No. KABARE/MIKARARA/589 pending the hearing and determination of the suit, and (ii) leave to amend her plaint dated 22nd August 2016, brought under Sections 1A, 1B, 3A and 100 of the Civil Procedure Act and Orders 8, 40 and 51 of the Civil Procedure Rules. The applicant deponed that she bought the suit land from the respondent's father in 2006, paid the full purchase price and was issued a title deed in 2007, but the respondent then successfully claimed the land before the Gichugu Land Disputes Tribunal; the award was adopted as a judgment of the SRM court at Kerugoya, resulting in the land being registered in the respondent's name. The respondent opposed, asserting he was the registered owner, had lived on and developed the land for over ten years, and that the applicant had never appealed or sought to set aside the Tribunal's award. The court found the applicant's explanation sufficient to warrant an inhibition under section 68(1) of the Land Registration Act. On the amendment prayer, the court adopted the principles in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Ltd and found no prejudice to the respondent, noting the amendment would seek cancellation of the title now held by the respondent. The court allowed the application: an order of prohibition was issued to be registered against the suit land pending hearing and determination; leave was granted to amend and serve the amended plaint within seven days; and the applicant was ordered to bear the costs of the application. Judgment delivered at Kerugoya on 13th March 2020 by E.C. Cherono, ELC Judge.

Key legal issues

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01

Whether an inhibition should issue against the suit land

Holding

Yes - the applicant's explanation that she bought the land for value, was registered as owner, and that the title was later cancelled following Land Disputes Tribunal proceedings was sufficient to warrant the grant of an order of inhibition

Reasoning

The court applied section 68(1) of the Land Registration Act, which empowers the court to inhibit registration of dealings with land. The applicant demonstrated that she purchased the land for value, obtained Land Control Board consent and was issued a title deed, but the land was subsequently registered in the respondent's name following a Land Disputes Tribunal award adopted by the SRM court. Those circumstances were held sufficient to justify the prohibitory order pending full hearing.

p. 2
02

Whether leave to amend the plaint should be granted

Holding

Yes - no prejudice would be suffered by the defendant if the proposed amendment (to seek cancellation of the respondent's title) were allowed

Reasoning

The court adopted the principles in Elijah Kipngeno Arap Bii v Kenya Commercial Bank Ltd, drawn from Joseph Ochieng & 2 others v First National Bank of Chicago, that amendment powers are exercisable at any stage, should be allowed if made in good faith and not merely technical, and should not change the action into one of substantially different character or deprive a defendant of limitation defences. Applying those principles, the court found no prejudice to the respondent since the amendment merely reflected the current registration position.

p. 2

Legal principles established

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  • The court may inhibit registration of any dealing with land under section 68(1) of the Land Registration Act where sufficient reasons are shown
  • Amendments to pleadings may be allowed at any stage if made in good faith and without prejudice to the other side

Court orders

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  1. 1.An order of prohibition to be registered in respect of L.R. No. KABARE/MIKARARA/589 prohibiting any transactions and/or dealing in the said land pending the hearing and determination of the suit
  2. 2.Leave granted to the plaintiff/applicant to amend, file and serve the plaint in terms of the draft amended plaint annexed to the supplementary affidavit sworn on 15th November 2019 within 7 days
  3. 3.Costs of the application to be borne by the plaintiff/applicant

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A and 100
  • Civil Procedure RulesOrder 8 Rule 3, Order 40 Rule 1, Order 51 Rule 1
  • Land Registration Act (No. 3 of 2012)Section 68(1)
  • Civil Procedure Rules (repealed)Order VIA rule 3

Cases cited (2)

  • Elijah Kipngeno Arap Bii Vs Kenya Commercial Bank Limited
    (2013) e K.L.R
  • Joseph Ochieng & 2 others Vs First National Bank of Chicago
    Civil Appeal No. 149 of 1991
Jurisdiction invoked
Sections 1A, 1B, 3A and 100 Civil Procedure Act; Order 8 Rule 3, Order 40 Rule 1 and Order 51 Rule 1 Civil Procedure Rules; Section 68(1) Land Registration Act

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, "Lazarus Mithambo Ndoro v Gichobi George [2020] KEELC 3110 (KLR)", Case Analysis (2020). Notice of Motion dated 19th August 2019 (suit arising from plaint dated 22nd August 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3110/eng@2020-03-13

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