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ELCPartially AllowedNot stated in judgment (application dated 28.1.2021)· [2021] KEELC 134 (KLR)

Bridget Kajuju v Rogers Kithinji & another [2021] KEELC 134 (KLR)

Environment and Land Court
20 December 2021
1,116 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Meru court refused an injunction because the land claimant had no title or evidence, but froze all dealings on the disputed land for one year to preserve the status quo.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court at Meru on the plaintiff's application dated 28.1.2021 seeking injunction and inhibition orders over Parcel No. Abogeta/L Kiungone/1294 pending hearing of the suit. The plaintiff claimed the land belonged to him through inheritance and a 1997 agreement to exchange parcels with the 1st defendant, but that the 1st defendant instead transferred it to the 2nd defendant, who issued a demand for vacant possession. The 2nd defendant opposed, admitting he purchased the parcel in 2020 for Kshs. 1,450,000, took vacant possession and obtained a title deed on 1.10.2020, and pointed to a pending eviction suit at Nkubu Law Courts. On the injunction, the court applied the Giella-style test and found the applicant had no title, no documentary evidence of the exchange agreement or approved developments, and had not explained a delay of over two months since the notice to vacate; the registered title of the 2nd defendant under Section 26 of the Land Registration Act was protected, and the court chose the option of less injustice. However, invoking Sections 68 and 69 of the Land Registration Act, the court granted inhibition orders stopping any dealings with the suit parcel for one year and directed maintenance of the status quo, finding the plaintiff had a legitimate interest warranting preservation. A request for transfer and consolidation of the Nkubu matter was declined for lack of a supporting prayer, deferred to the case conference. The respondents were directed to file a defence within 30 days and comply with Order 11 within 45 days.

Key legal issues

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01

Entitlement to a temporary injunction

Holding

Refused - the applicant failed to demonstrate a prima facie case or irreparable harm; a registered owner in vacant possession was protected

Reasoning

The applicant held no title and produced no documentary evidence of the alleged 1997 exchange agreement, building permits or occupation records. The 2nd defendant held a title issued on 1.10.2020 after purchasing for Kshs. 1,450,000 and had taken vacant possession and developed the land. The applicant waited over two months after the notice to vacate before filing suit, and the delay was unexplained. The court opted for the less unjust outcome pending trial.

p. 2
02

Inhibition orders to preserve the suit land

Holding

Granted - dealings on Parcel No. Abogeta/L Kiungone/1294 stopped for one year

Reasoning

Sections 68 and 69 of the Land Registration Act empower the court to impose inhibition orders to preserve land in dispute pending hearing and determination of the suit. Although the injunction was refused, the plaintiff pleaded fraud and breach of trust and appeared to have some legitimate interest or rights over the land as recognized in the Mrao test, so preservation by inhibition was warranted.

p. 2
03

Transfer and consolidation with Nkubu ELC Case No. 4 of 2021

Holding

Not determined - no prayer in the application; deferred to case conference

Reasoning

The application sought no relief for transfer or consolidation, and the applicant had not disclosed the Nkubu suit in the verifying affidavit despite both matters being filed four days apart. As no defence or counterclaim had been filed, the court would give proper directions at the case conference once pleadings closed.

p. 1

Legal principles established

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  • A registered title is prima facie evidence of ownership protected under Article 40 of the Constitution except on grounds of fraud, illegality or corrupt acquisition
  • An applicant for a temporary injunction must establish a prima facie case with probability of success, irreparable loss, and balance of convenience
  • The court has power under Sections 68 and 69 of the Land Registration Act to impose inhibition orders to preserve land pending determination of a suit

Court orders

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  1. 1.Status quo subsisting at the time of filing the suit to be maintained
  2. 2.Inhibition orders to issue stopping any dealings or transactions relating to Parcel No. Abogeta/L Kiungone/1294
  3. 3.The said orders to remain in force for a period of one year
  4. 4.The respondents to file a defence to the plaint within 30 days
  5. 5.Thereafter parties to comply with Order 11 within 45 days
Jurisdiction invoked
Sections 68 and 69 of the Land Registration Act, 2012 (inhibition jurisdiction); Environment and Land Court jurisdiction over land parcels

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, "Bridget Kajuju v Rogers Kithinji & another [2021] KEELC 134 (KLR)", Case Analysis (2021). Not stated in judgment (application dated 28.1.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/134/eng@2021-12-20

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