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ELCDismissedNot stated in judgment (relates to land parcel NGARIAMA/MERICHI/461)· [2020] KEELC 3113 (KLR)

Jackson Kariuki Gikando (Suing as the Administrator of the Estate of Njine Mwara) v Fridah Gacheri Kirimi & 2 others [2020] KEELC 3113 (KLR)

Environment and Land Court
13 March 2020
1,653 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Kerugoya Environment and Land Court refused to freeze dealings over a subdivided Kirinyaga land parcel because the applicant did not prove a strong enough case.

What this practically means

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Executive summary

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The applicant, administrator of the Estate of Njine Mwara (deceased), brought a Notice of Motion dated 2nd July 2019 under Order 40 CPR and Sections 68 and 69 of the Land Registration Act seeking an order of inhibition restraining any dealings with land parcel No. NGARIAMA/MERICHI/461 pending hearing of the suit. He traced a history of competing succession grants and registrations, contending that entries on the green card made pursuant to a grant to Francis Njeru Njine were cancelled by a 2007 ruling, later vacated by an order of 6th February 2014 in Misc. Application No. 122 of 2002 (Nyeri), and that further entries Nos. 11-13 were suspect. The 1st and 2nd respondents filed a preliminary objection asserting lack of jurisdiction (Section 7 CPA, Article 159), abuse of process, and that their title was protected under Section 26 of the Land Registration Act following Succession Cause No. 366 of 2011 (Embu). The court held that inhibition orders are granted on injunction principles - prima facie case, irreparable injury and balance of convenience. It found the certificate of title over the suit parcel non-existent, the parcel having been closed on sub-division into parcels 742, 1416 and 1417, registered in the defendants' names, with the applicant registered as proprietor of none. The application was dismissed with costs to the defendants, and the preliminary objection was not upheld.

Key legal issues

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01

Whether the applicant was entitled to an order of inhibition over NGARIAMA/MERICHI/461

Holding

The application was dismissed because the applicant failed to establish a prima facie case, irreparable injury or balance of convenience.

Reasoning

The court held that Parliament gave no guidelines for granting inhibition orders, so the injunction principles apply. The certificate of title over the suit parcel was non-existent as it was closed on partition after sub-division into parcels 742, 1416 and 1417. The resultant titles are registered in the defendants' names and the applicant is not registered as proprietor of any of them. The property was also distributed after determination of Succession Cause No. 122 of 2002 and Misc. Application No. 4 of 2014 (Nyeri).

p. 2
02

Whether the preliminary objection on jurisdiction and competence should be upheld

Holding

The preliminary objection was not upheld.

Reasoning

The respondents objected that the suit was incompetent, an abuse of process, offended Section 7 CPA and Article 159 of the Constitution, and that the 3rd respondent was irregularly sued. The court considered the application on its merits and declined to uphold the objection, dismissing the motion instead. The judgment does not give detailed reasons for rejecting the preliminary objection.

p. 2

Legal principles established

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  • An order of inhibition under Section 68 of the Land Registration Act is granted on the same principles as an injunction: prima facie case, irreparable injury not compensable in damages, and balance of convenience where the court is in doubt.

Court orders

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  1. 1.The Notice of Motion dated 2nd July 2019 is dismissed with costs to the defendant/respondent
  2. 2.The Notice of Preliminary Objection dated 12th July 2019 is not upheld

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(a), 2 & 4(1)
  • Civil Procedure ActSections 1A, 1B, 3A, 63
  • Civil Procedure Act Cap 21Section 7
  • Land Registration Act No. 3 of 2012Sections 26, 68, 69
  • Constitution of KenyaArticle 159; Article 40
  • Law of Succession Act Cap 16Section 29
  • Registered Land Act No. 3 of 2012 (as cited by respondents)Section 30(1), Sections 12 and 13
Jurisdiction invoked
Sections 68 and 69 of the Land Registration Act No. 3 of 2012; Order 40 Rule 1(a), 2 & 4(1) CPR; Sections 1A, 1B, 3A and 63 CPA

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, "Jackson Kariuki Gikando (Suing as the Administrator of the Estate of Njine Mwara) v Fridah Gacheri Kirimi & 2 others [2020] KEELC 3113 (KLR)", Case Analysis (2020). Not stated in judgment (relates to land parcel NGARIAMA/MERICHI/461). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3113/eng@2020-03-13

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