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ELCAllowedNot stated in extract· [2021] KEELC 775 (KLR)

Patrick Sifuna Kinisu v Protus Sifuna Makokha & 3 others; Job Munyasia (Interested Party) eKLR [2021] KEELC 775 (KLR)

Environment and Land Court
28 October 2021
BOBoaz N. Olao
1,458 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Bungoma Environment and Land Court froze land dealings in a title dispute and allowed a new defendant to be added, so the land cannot be sold or charged while the case continues.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Bungoma (Olao J) on the plaintiff's Notice of Motion dated 15th July 2021 in an ongoing suit commenced on 24th March 2016 seeking cancellation of titles to land parcels NO. EAST BUKUSU/SOUTH KANDUYI/18401 and 18415. The plaintiff sought two substantive orders: an inhibition over the two parcels pending the hearing and determination of the suit, and leave to amend his amended plaint to enjoin Linda Mulama Kamande as 4th defendant. The plaintiff deponed that during the pendency of the suit, the Interested Party, Job Munyasia, transferred the two parcels to Kamande on 28th January 2021, and that she was planning to charge or sell them. The application was served on all parties including the proposed 4th defendant, but was unopposed, with no responses or submissions filed. The court, applying Section 68(1) of the Land Registration Act, held that an inhibition preserves disputed property and granted it to forestall further transfers and multiplicity of applications. On amendment, applying Order 8 Rule 3(1) of the Civil Procedure Rules and the established principle that amendments should be freely allowed absent injustice compensable by costs, the court allowed the joinder and amendment. The application was allowed in full: Kamande was enjoined as 4th defendant, timelines were set for filing the further amended plaint and defences, a virtual pre-trial was fixed for 22nd November 2021 with trial to commence denovo, inhibition orders issued over the two parcels, and costs were made costs in the cause.

Key legal issues

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01

Whether inhibition orders should issue

Holding

Inhibition granted where the suit land may otherwise be transferred to third parties during the pendency of the suit

Reasoning

The suit, filed in 2016, concerns cancellation of titles; during its pendency the parcels were transferred to the proposed 4th defendant on 28th January 2021, who is allegedly planning to charge or sell them. To avoid further transfers, further applications and judicial time, inhibition was warranted on the un-rebutted affidavit evidence.

p. 2
02

Whether leave to amend the plaint and join the proposed 4th defendant should be granted

Holding

Leave granted; the application was unopposed and no prejudice was demonstrated

Reasoning

The plaint had previously been amended to enjoin the Interested Party. The Court has a wide discretion on amendments aimed at doing justice and avoiding multiplicity of suits. None of the parties nor the proposed 4th defendant filed a response despite service, indicating no prejudice.

p. 2

Legal principles established

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  • An order of inhibition bars the registered proprietor of land in dispute from registering any dealings over the land until the ownership dispute is determined, and preserves the property in dispute.
  • Amendments to pleadings should freely be allowed if they can be made without injustice to the other party, which can be compensated by costs.

Court orders

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  1. 1.Linda Mulama Kamande is enjoined in these proceedings as the 4th defendant
  2. 2.The further amended plaint be filed and served upon all parties within seven (7) days
  3. 3.The 4th defendant shall file and serve her defence, witness statements and documents within 15 days from service of the further amended plaint
  4. 4.The other parties may, within seven (7) days from service of the further amended plaint, file and serve any amended defence
  5. 5.A pre-trial shall be held virtually before the Deputy Registrar on 22nd November 2021 and the trial shall commence denovo on a date to be fixed by the Deputy Registrar
  6. 6.Pending the hearing and determination of the suit, an order of inhibition is issued inhibiting the registration of any dealing including a transfer or charge of land parcels NO. EAST BUKUSU/SOUTH KANDUYI/18401 and 18415
  7. 7.Costs shall be in the cause

Authorities

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Legislation

  • Land Registration ActSection 68(1)
  • Civil Procedure RulesOrder 8 Rule 3(1)

Cases cited (3)

  • DORCAS MUTHONI & OTHERS .V. MICHAEL IRERI NGARI
    2016 eKLR
  • EASTERN BAKERY .V. CASTELINO
    1958 E.A 461
  • CENTRAL KENYA LTD .V. TRUST BANK LTD
    2000 2 EA 365
Jurisdiction invoked
Land Registration Act, Section 68(1) and Order 8 Rule 3(1) Civil Procedure Rules (original jurisdiction)

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, "Patrick Sifuna Kinisu v Protus Sifuna Makokha & 3 others; Job Munyasia (Interested Party) eKLR [2021] KEELC 775 (KLR)", Case Analysis (2021). Not stated in extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/775/eng@2021-10-28

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