Performance Appraisal and Investment Limited v Kenneth Mburu Ndungu [2021] KEELC 1809 (KLR)
The bottom line
#A Kenyan land buyer who failed to prove their title was older than the defendant's could not stop the defendant from using the land while the case continues.
What this practically means
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case with a probability of success
No - the Defendant's late father was registered as proprietor in 1995, before the vendor Mithamo Karubio/Karobia whose registration post-dated it and who sold to the Plaintiff in 2017
The court compared the competing titles: the Defendant produced a title showing his late father registered on 1st February 1995 plus a Certificate of Confirmation of Grant of 28th October 2015, while the Plaintiff traced its title to Mithamo Karubio only from 30th November 2016/2017. On these facts the Plaintiff failed the first Giella limb, so the court did not evaluate irreparable harm or the balance of convenience, and it also flagged the non-joinder of the vendor and Land Registrar.
Whether joinder of the Land Registrar and the vendor was necessary
The court considered joinder of all relevant parties pertinent to a proper determination, though it rested dismissal on the absence of a prima facie case
The Plaintiff had sued only the Defendant as a trespasser and declined to enjoin the Land Registrar or the vendor Mithamo Karubio. The court observed that resolving a competing-title dispute of this kind requires all relevant parties before it. This observation informed, but did not solely determine, the outcome.
Legal principles established
#- A party seeking a temporary injunction must first establish a prima facie case with a probability of success; failure on this limb disposes of the application without considering irreparable harm and the balance of convenience
- Where the applicant can be adequately compensated by damages, an injunction will not issue
Court orders
#- 1.Dismissal of the Notice of Motion dated 12th June 2020
- 2.Costs of the application to the Defendant
- Jurisdiction invoked
- section 3 and 13(7) of the Environment and Land Court Act; Sections 1A, 3A and 63(c) & (e) of the Civil Procedure Act and Order 40 Rules 1 & 4 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Performance Appraisal and Investment Limited v Kenneth Mburu Ndungu [2021] KEELC 1809 (KLR)", Case Analysis (2021). Notice of Motion dated 12th June 2020 (ELC suit, Machakos). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1809/eng@2021-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.