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ELCPartially AllowedNot stated in the judgment· [2021] KEELC 298 (KLR)

Juma Abdalla Kathenge & another v Mayport Limited [2021] KEELC 298 (KLR)

Environment and Land Court
1 December 2021
6,675 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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A Mombasa land court froze a disputed property instead of handing victory to either side, because both buyers held titles and one had serious document inconsistencies.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (L. L. Naikuni J, 1 December 2021) determined five omnibus interlocutory applications arising from a dispute over CR 20722 Subdivision No. 6243 (Original No. 5220/4), Mombasa. The Plaintiffs, claiming to have purchased the land from James Kibet Chirchir in 2016 with transfer and registration in September 2017, sought a temporary injunction restraining the Defendant from selling, charging, alienating or interfering with the property. The Defendant equally claimed ownership, asserting a 2013 purchase from the same Vendor and attacking the Plaintiffs' documents as fraudulent and internally inconsistent (freehold versus leasehold descriptions in the postal searches). Applying Giella v Cassman Brown, the court found no prima facie case because the inconsistencies in the Plaintiffs' title documents went to the root of title and neither party proved possession; it held the balance of convenience favoured preservation and allowed the Notice of Motion dated 8 April 2021 only to the extent of maintaining status quo, collapsing the Defendant's applications of 22 and 30 September 2021. The court further allowed joinder of the Vendor and Land Registrar, Mombasa (and the Attorney General) as 2nd, 3rd and 4th Defendants, holding the mis-citation of Order 1 Rule 9 curable under Article 159(2)(d), and directed an inhibition order over the property under Section 68 and 69 of the Land Registration Act. The advocate's application to cease acting failed for want of proof of service, with liberty to serve within seven days. All applications were decided with no order as to costs, with the suit to be heard within ninety days.

Key legal issues

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01

Whether the Plaintiffs met the Giella v Cassman Brown test for an interlocutory injunction

Holding

No prima facie case was established because the Plaintiffs' title documents contained material inconsistencies; the court instead ordered maintenance of status quo and an inhibition order to preserve the property pending trial.

Reasoning

The court compared the annextures: the postal searches described the tenure inconsistently as freehold versus leasehold, raising questions going to the root of title. The Defendant also held a competing title from the same Vendor. Since both parties held certificates of title and neither proved possession, damages could not be an adequate yardstick, and the balance of convenience favoured preserving the property until ownership was determined at a full trial with witnesses and cross-examination.

p. 5
02

Whether the Vendor, Land Registrar Mombasa and the Attorney General should be joined as defendants

Holding

Yes. The intended 2nd and 3rd Defendants were proper and necessary parties; mis-citing Order 1 Rule 9 instead of Rule 10(2) was curable, and the Plaintiffs' objection about the absent draft amended pleadings did not defeat the joinder.

Reasoning

The Vendor was named in the competing transactions and the Registrar issued the questioned postal searches, so their presence was essential for the court to effectively and completely adjudicate on title. The court adopted the Nambuye J criteria in Joseph Njau Kingori v Robert Maina Chege and Kamau J's discretion principles in Crescent Distribution Services, holding that the joinder would bind the joined parties to the eventual decree and save judicial time. The 4th Defendant (Attorney General) was joined as part of the leave granted.

p. 6
03

Whether Chala & Co Advocates should be granted leave to cease acting

Holding

Leave refused for failure to prove service of the application on all parties as required by Order 9 Rule 13 and Order 5; the firm was directed to effect service within seven days failing which the application stands dismissed.

Reasoning

The firm cited a fees stalemate and wished to tax its advocate-client bill. The court noted that a client may change an advocate and an advocate may withdraw, but Rule 13 requires notice to all affected parties proved by affidavit of service, which was absent. Rule 13(3) preserves the advocate's right to tax its bill regardless, so the firm could still tax its costs even though the application was unmerited.

p. 7

Legal principles established

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  • Where both parties claim ownership of the same parcel of land with competing titles, the court should preserve the property and maintain the status quo pending full trial rather than grant an injunction to one claimant.
  • Mis-citation of the procedural rule (Order 1 Rule 9 instead of Rule 10(2)) is a curable error under Article 159(2)(d) of the Constitution and Section 1B of the Civil Procedure Act.
  • An advocate seeking to cease acting must prove service on all affected parties; without proof of service, leave under Order 9 Rule 13 will not be granted.

Court orders

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  1. 1.Notice of Motion dated 8th April 2021 allowed - status quo over the suit property to be maintained (no selling, charging, alienation, registration or interference) until the suit is heard and determined.
  2. 2.Notice of Motion applications dated 22nd September 2021 and 30th September 2021 collapsed/dismissed with no orders as to costs.
  3. 3.Land Registrar, Mombasa directed to register an inhibition order against the suit property under Section 68(1)(2) & 69 of the Land Registration Act and Regulations 79(1),(2) & (3) of the Land Registration (General) Regulations, 2017 within thirty (30) days at the cost of the 1st and 2nd Plaintiffs/Applicants.
  4. 4.Chamber Summons dated 25th May 2021 allowed - Defendant granted leave to join James Kibet Chirchir, the Land Registrar, Mombasa and the Honorable Attorney General as 2nd, 3rd and 4th Defendants respectively.
  5. 5.Defendant granted leave to file and serve an amended statement of Defence and Counter-claim within fourteen (14) days.
  6. 6.Plaintiffs/Applicants granted leave to file and serve an amended Plaint and Counter Claim and a further Reply within twenty-one (21) days of service.
  7. 7.Law firm of Messrs. Chala & Co Advocates directed to effect personal service of the Chamber Summons dated 6th October 2021 on all parties within seven (7) days, backed by an Affidavit/Return of Service, for inter parte hearing on 24th January 2022; in default the application stands dismissed.
  8. 8.Suit to be fixed for hearing within ninety (90) days; pre-trial conference on 24th January 2022 under Order 11 of the Civil Procedure Rules.
  9. 9.All applications determined with no order as to costs.

Authorities

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Legislation

  • Constitution of Kenya, 2010Articles 40, 50, 159(2)(d)
  • Civil Procedure Act, Cap. 21Sections 1, 1A, 1B, 3, 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2, 4, 7; Order 1 Rules 9, 10(2); Order 9 Rule 13; Order 5; Order 11
  • Environment and Land Court Act, 2012Sections 3, 14 & 19
  • Land Act, 2012Section 150
  • Land Registration Act, 2012Sections 68(1)(2) & 69, 101
  • Land Registration (General) Regulations, 2017Regulations 79(1),(2) & (3)
  • Advocates Remuneration OrderRule 13(1), 13(3)

Cases cited (4)

  • Giella – Vs - Cassman Brown
    (1973) EA 358
  • Tritex Industries Limited & 3 others – Vs - National Housing Corporation & another
    (2014) eKLR
  • Joseph Njau Kingori v Robert Maina Chege & 3 others
    [2002] eKLR
  • Crescent Distribution Services Limited V Egnite Technologies Limited & Another
    (2013) eKLR
Jurisdiction invoked
Articles 40, 50 and 159(2) of the Constitution; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Civil Procedure Rules; Environment and Land Court Act; Land Act; 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, "Juma Abdalla Kathenge & another v Mayport Limited [2021] KEELC 298 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/298/eng@2021-12-01

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