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ELCDismissed· [2020] KEELC 3809 (KLR)

Edward Kungu & another v David Ndung’u Njihia & 7 others ; Jessy Karanja Mucheke(Proposed Interested Party) [2020] KEELC 3809 (KLR)

Environment and Land Court
4 February 2020
MOM.C. Oundo
2,595 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to freeze the disputed land because the defendants held valid registered titles, and challenging a registered title requires due process, not just allegations.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nyahururu (M.C. Oundo, J) determined a Notice of Motion dated 4th November 2019 in which the Plaintiffs, who claimed to have purchased land parcel Nyandarua/Kahuru/143 in February 1993 from the estate of Stephen Mwangi Chege, sought interlocutory injunctions restraining the Defendants from interfering with, alienating, subdividing or dealing with that parcel and the resultant subdivisions Nyandarua/Kahuru/10002-10014. The Plaintiffs alleged fraud: the 1st Defendant had closed the title and transferred subdivisions to the 2nd-6th Defendants. The 1st-6th Defendants opposed, asserting that the land was allocated in 1963 to David Mucheke Njenia by the Settlement Fund Trustee, that the Plaintiffs' title was fake with no discernible root (noting inconsistencies in the succession documents relied upon and the absence of allotment letters), and that the Defendants' registered titles were protected by Sections 24, 25 and 26 of the Land Registration Act. The court applied the Giella v Cassman Brown principles and held that the Applicants failed to establish a prima facie case: the Defendants held duly registered certificates of title which are prima facie indefeasible, and any challenge to them on grounds of fraud or illegality must follow due process for revocation under Section 26(1) of the Land Registration Act and Article 40(6) of the Constitution. Since the Giella conditions are sequential, the court did not consider irreparable harm or balance of convenience. The application was dismissed with costs to the 1st-6th Respondents, and the parties were directed to comply with Order 11 of the Civil Procedure Rules within 21 days in preparation for the hearing of the main suit.

Key legal issues

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01

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

Holding

They did not; the 1st-6th Defendants hold duly registered certificates of title which are prima facie evidence of indefeasible ownership under Section 26 of the Land Registration Act, and no evidence showed the titles had been recalled or revoked

Reasoning

The court accepted that the 1st Defendant was the registered proprietor who subdivided the suit land, with the subdivisions registered in the 1st-6th Defendants' names. Under Sections 25 and 26 of the Land Registration Act and Article 40(6) of the Constitution, registered titles are prima facie indefeasible and can only be challenged on proof of fraud, misrepresentation, or illegal, unprocedural or corrupt acquisition. Due process must be followed to revoke a title. At the interlocutory stage the court could not finally determine title validity, but the facially proper registration meant no prima facie case was shown.

p. 4
02

Whether the remaining Giella conditions needed consideration once the first condition failed

Holding

No; the conditions are sequential and failure of the first disposes of the application

Reasoning

Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society as cited with approval in Joseph Wambua Mulusya v David Kitu, the court held that the second condition can only be addressed if the first is satisfied, and an injunction cannot issue on the balance of convenience alone where no prima facie case is established and the court entertains no doubt on that question.

p. 4

Legal principles established

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  • The conditions for an interlocutory injunction in Giella v Cassman Brown are sequential; failure of the first condition (prima facie case) ends the enquiry
  • Where a registered title is impugned as fraudulently or irregularly issued, due process must be followed before it can be revoked, cancelled or annulled

Court orders

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  1. 1.The Application dated 4th November 2019 is dismissed with costs to the 1st-6th Respondents
  2. 2.Parties to comply with the provisions of Order 11 of the Civil Procedure Rules within the next 21 days from the delivery of the ruling for the hearing of the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1(2)(7) and 10; Order 51 Rules 1-3; Order 11
  • Civil Procedure ActSections 1A, 1B and 3A
  • Land Registration ActSections 7, 24, 25, 26(1), 28
  • Registered Land Act (repealed)Cap 300
  • Land ActAct No. 6 of 2012
  • Constitution of KenyaArticle 40(6)

Cases cited (5)

  • Giella vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Kamau James Njendu vs Serah Wanjiru & Another
    [2018] eKLR
  • Kibiro Wagoro Makumi vs Francis Nduati Macharia & Another
    (2018) eKLR
  • Kenya Commercial Finance Co. Ltd –vs- Afraha Education Society
    (2001) IEA 86
  • Joseph Wambua Mulusya –vs- David Kitu & Another
    (2014) eKLR
Jurisdiction invoked
Order 40 Rules 1(2)(7) and 10 and Order 51 Rules 1-3 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure 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, "Edward Kungu & another v David Ndung’u Njihia & 7 others ; Jessy Karanja Mucheke(Proposed Interested Party) [2020] KEELC 3809 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3809/eng@2020-02-04

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