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ELCPartially AllowedELC Case of Gaturi/Nembure/341 and Kagaari/Kanja/251 (Embu)· [2021] KEELC 761 (KLR)

Anthony Muriithi Njeru & another v Mercy Wambua Njeru & another [2021] KEELC 761 (KLR)

Environment and Land Court
3 November 2021
2,754 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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The Embu Environment and Land Court froze all dealings on two disputed Embu land parcels but refused to stop eviction or damage, because the buyers hadn't registered their transfer.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Embu (A.K. Kaniaru, J) determines a notice of motion dated 20th February 2020 in which the applicants, who claimed to have purchased the suit parcels Gaturi/Nembure/341 and Kagaari/Kanja/251 at a public auction conducted by Barclays Bank in 2001, sought a temporary injunction, an order of inhibition, police enforcement of the orders and costs. They alleged that although they never registered the transfer, they had occupied and developed the land since 2001, and that the 1st Respondent, who acquired the parcels through succession proceedings after her husband's demise, invaded the land with goons in February 2020, destroyed crops and sold one parcel to the 2nd Respondent, a self-styled bona fide purchaser for value. The respondents denied the auction, asserted registered ownership and denied the applicants' possession. The court applied the Giella v Cassman Brown test. On the first limb it found that the applicants had not established a prima facie case, since no document proved the auction sale and the unregistered transfer conferred no proprietorship rights; the injunction prayer therefore failed, the other limbs not falling for consideration. However, applying Section 68(1) of the Land Registration Act and the principle of lower risk of injustice, the court found that an inhibition would preserve the seriously contested property without prejudicing the respondents. Prayer 5 for inhibition was granted pending hearing and determination of the suit, with costs of the application in the cause.

Key legal issues

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01

Whether the applicants established a prima facie case for an interlocutory injunction

Holding

The applicants failed to establish a prima facie case; no document proved the alleged auction sale and the unregistered transfer conferred no proprietorship rights

Reasoning

The court applied the Giella test and Mrao's definition of a prima facie case. Although the applicants exhibited a notification of sale, unregistered transfer documents, consent and photographs, the respondents produced ownership documents and denied the auction. The court held the burden lay on the applicants, who had done little to persuade the court, and the ownership dispute could only be resolved at trial.

p. 3
02

Whether an order of inhibition should issue over the suit parcels

Holding

An order of inhibition was granted to preserve the property pending trial, since ownership is seriously contested and both parties claim possession

Reasoning

Applying Section 68(1) of the Land Registration Act and Dorcas Muthoni v Michael Ireri Ngari, the court treated inhibition as akin to a prohibitory injunction preserving disputed property. Balancing competing interests on the Films Rover principle of lower risk of injustice, the court found no prejudice to the respondents from an inhibition while the proprietary interests await trial.

p. 3
03

Whether the court should determine ownership at the interlocutory stage

Holding

No; substantial issues of ownership must be determined at trial

Reasoning

Relying on Shitakha v Mwamodo, the court cautioned itself against dealing with substantial issues at the interlocutory stage, noting the application was interlocutory and the ownership contention could only be determined at trial by calling witnesses and scrutinising documents.

p. 3

Legal principles established

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  • An unregistered transfer does not confer proprietorship rights on a transferee
  • An order of inhibition under Section 68 of the Land Registration Act may issue on the lower-risk-of-injustice principle even where an interlocutory injunction fails, to preserve disputed property pending trial

Court orders

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  1. 1.Prayer 5 of the notice of motion dated 20th February 2020 granted - an order of inhibition is issued over land parcels Gaturi/Nembure/341 and Kagaari/Kanja/251 pending hearing and determination of the suit
  2. 2.Costs of the application to be in the cause

Authorities

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Legislation

  • Constitution of KenyaArticle 40(2)(a)
  • Civil Procedure RulesOrder 40 Rule 1; Order 50 Rule 10
  • Land Registration ActSection 68(1)
  • Civil Procedure ActSections 1A and 3A

Cases cited (10)

  • Giella Vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Ltd Vs Jan Bonde Nielsen & 2 others
  • Elijah Njeru Mugo Vs Njeru Samuel M'Rwingoe
    ELC No. 6 of 2019
  • Showind Industries Vs Guardian Bank Limited & Another
    (2002) I E.A 284
  • Shitakha Vs Mwamodo & 4 Other
    [1986] KLR 445
  • Mrao Ltd v. First American Bank of Kenya Ltd & Others
    Civil Appeal No. 39 of 2002
  • Kenya Commercial Finance Co. Ltd versus Afraha Education Society
    (2001) 1 EA 86
  • Dorcas Muthoni & 2 others v Michael Ireri Ngari
    [2016] eKLR
  • FILMS ROVER INTERNATIONAL & OTHERS VS CANNON FILMS SALES LTD
    1986 3 ALL E.R 772
  • E.A. INDUSTRIES VS. TRUFOODS
    [1972] E.A. 420
Jurisdiction invoked
Article 40(2)(a) of the Constitution of Kenya; Order 40 Rule 1 & Order 50 Rule 10 of the Civil Procedure Rules; Section 68(1) of the Land Registration Act; Sections 1A & 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, "Anthony Muriithi Njeru & another v Mercy Wambua Njeru & another [2021] KEELC 761 (KLR)", Case Analysis (2021). ELC Case of Gaturi/Nembure/341 and Kagaari/Kanja/251 (Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/761/eng@2021-11-03

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