Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the judgment (amended Notice of Motion dated 24/09/2020)· [2021] KEELC 1539 (KLR)

Siphora Chebet Towett v Mwangi Charles Mahinda & another [2021] KEELC 1539 (KLR)

Environment and Land Court
14 October 2021
MNMwangi Njoroge
2,412 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

A Kenyan court blocked sale of subdivided land despite the owner already having title, showing subdivision does not shield disputed property from court orders.

What this practically means

#

Executive summary

#
The plaintiff, administrator of the estate of Kipchumba Arap Towett (deceased), sought by amended Notice of Motion dated 24/09/2020 a temporary injunction restraining the 1st defendant and the 2nd intended defendant from alienating, disposing of, selling, wasting or dealing with land parcel Naivasha/Oljorai PH 11/875 pending the hearing of the suit. She relied on an existing order of 4/3/2020 and alleged that the 1st defendant had, in breach of it, entered a sale agreement dated 4/09/2020 over one acre with Moses Kamau Mwangi. The 1st defendant countered that he purchased the land from the deceased in 2011, paid the purchase price (partly towards land in Kuresoi on which the deceased settled), took possession, obtained registration and later sold to a third party who holds title. The court framed two issues: contravention of a court order, and entitlement to an interlocutory injunction. It found that title had issued to the 2nd defendant on 3/3/2020, before the suit and initial orders, so no contravention was proved. The plaintiff established a prima facie case but not irreparable loss; however, the balance of convenience favoured preserving the substratum of the litigation. Applying Paul Pkemoi Kide, the court held that subdivision of the parcel was no bar to relief. It enjoined the 2nd defendant from disposing of the subplots arising from the subdivision, maintained the status quo on the ground and titles, ordered costs in the cause, and directed compliance with Order 11 and a mention for fixing a hearing date. The application was allowed in part.

Key legal issues

#
01

Whether the defendants contravened the court order of 4/3/2020

Holding

No contravention was established

Reasoning

The court examined the record and found that the suit land had already been registered in and transferred to the 2nd defendant, with title issued on 3/3/2020, before the suit commenced and before the initial injunction issued. The mutation and subdivision post-dated the suit, but since title had already passed, the court could not find the transfer or subdivision breached any subsisting order.

p. 3
02

Whether a temporary injunction should issue pending hearing of the suit

Holding

Granted against the 2nd defendant only, plus status quo, on balance of convenience despite failure on irreparable loss

Reasoning

The plaintiff established a prima facie case but failed to show irreparable loss not compensable by damages. However, the court considered the balance of convenience and found it favoured injuncting disposal or waste, since such acts could render the litigation nugatory. The orders were framed against the subplots arising from subdivision, the registered owner having been enjoined.

p. 3

Legal principles established

#
  • Subdivision of suit land does not bar a court from issuing orders, if deserved, over the resultant subplots where the whole parcel arose from the land claimed and the current registered owner is before the court
  • An applicant for an interlocutory injunction must establish a prima facie case with a probability of success; damages must be inadequate; and where in doubt the court decides on a balance of probability

Court orders

#
  1. 1.The 2nd defendant is injuncted from disposing of the subplots arising from the subdivision of Parcel No. Naivasha/Oljorai PH 11/875 pending the hearing and determination of the instant suit
  2. 2.The prevailing status quo on the ground and on the titles to the subplots arising from the subdivision of the suit land shall be maintained pending the hearing and determination of the instant suit
  3. 3.The costs of the application shall be in the cause
  4. 4.All parties to comply with Order 11 of the Civil Procedure Rules, the plaintiff within 14 days and the defendants within 28 days, and appear before the court online on 18/11/2021 for fixing of a hearing date for the main suit

Authorities

#

Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 100
  • Civil Procedure Rules 2010Order 1 Rule 3; Order 8 Rules 3 and 5; Order 40 Rule 1; Order 51 Rule 1; Order 11

Cases cited (3)

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Paul Pkemoi Kide v Philip Kimutai Kibor & 2 others
    [2018] eKLR
Jurisdiction invoked
Sections 1A, 1B, 3A and 100 of the Civil Procedure Act; Orders 1 Rule 3, 8 Rules 3 and 5, 40 Rule 1 and 51 Rule 1 of the Civil Procedure Rules 2010

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Siphora Chebet Towett v Mwangi Charles Mahinda & another [2021] KEELC 1539 (KLR)", Case Analysis (2021). Not stated in the judgment (amended Notice of Motion dated 24/09/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1539/eng@2021-10-14

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