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ELCAllowedELC Case (Kwale), interlocutory application dated 16 December 2019 (filed with plaint 16 December 2019)· [2021] KEELC 2049 (KLR)

Tamu Ndoto Limited v Bakari Kassim Mjusi & another [2021] KEELC 2049 (KLR)

Environment and Land Court
22 July 2021
CYC.K. Yano
1,612 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court froze all dealings on disputed Kwale land after conflicting title records showed the property cannot be safely transferred until ownership is decided at trial.

What this practically means

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Executive summary

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By an application dated 16 December 2019, filed alongside a plaint, the plaintiff sought a temporary injunction restraining the defendants from dealing with land parcel Kwale/Ramisi Kinondo S.S/54. The plaintiff claimed to be the registered owner, having purchased the land from Shabani Omar on 1 November 2013, and alleged that fraud by the 2nd defendant resulted in the 1st defendant's name being inserted in the green card as registered proprietor. The plaintiff relied on his certificate of title and the indefeasibility provisions of Sections 25 and 26 of the Land Registration Act and Article 40 of the Constitution. The 1st defendant did not enter appearance despite affidavit of service. The 2nd defendant, through counsel, indicated its records showed the land was allocated to Shabani Omar and later transferred to Bakari Kassim Mjusi on 16 January 2021, with a power of attorney granted by the first allottee, and that a restriction existed on the title. Applying the Giella v Cassman Brown principles and Order 40 Rule 1 of the Civil Procedure Rules, the court found a prima facie case: the green card marked PVN4 showing transfer to the 1st defendant contradicted the plaintiff's certificate of title and green card PVB 3, raising serious triable questions of ownership. The court also found the plaintiff would suffer irreparable damage absent preservation, and that the balance of convenience favoured him. The court allowed the application, granting a temporary injunction restraining the defendants from dealing with, selling, disposing of or interfering with the suit land until disposal of the suit or further orders, with costs in the cause.

Key legal issues

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01

Whether the plaintiff established a prima facie case

Holding

Yes - the contradiction between the green card showing transfer to the 1st defendant and the plaintiff's certificate of title raised serious questions of ownership constituting a triable issue

Reasoning

The plaintiff produced a certificate of title and alleged fraud. The green card marked PVN4 showing transfer to the 1st defendant on 16 January 2012 differed from the plaintiff's certificate of title and green card PVB 3. This contradiction raised serious questions on ownership which could only be resolved at trial with the suit property preserved.

p. 2
02

Whether the plaintiff would suffer irreparable injury not compensable by damages

Holding

Yes - the plaintiff's interest would not be safeguarded without preservation of the suit property

Reasoning

The court found that if orders were not granted, the plaintiff's interest in the suit land would not be safeguarded, and irreparable damage would follow if the 1st defendant dealt with the land. Preservation was directed to conserving the character and value of the property until ownership is determined.

p. 2
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Where the balance of convenience lies

Holding

It tilts in favour of the plaintiff given the serious question of ownership

Reasoning

Because the plaintiff presented a serious question of ownership of the suit property, the court held that preservation was necessary until that question was determined, tilting the balance of convenience in the plaintiff's favour.

p. 2

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on ground of fraud or misrepresentation to which the proprietor is a party, or where acquired illegally, unprocedurally or through a corrupt scheme (Section 26, Land Registration Act)
  • Conditions for a temporary injunction: prima facie case with probability of success, irreparable injury not compensable by damages, and balance of convenience if in doubt

Court orders

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  1. 1.A temporary injunction restraining the defendants, their servants, employees or agents, from dealing, selling, disposing, dissipating and/or in any manner interfering with the suit land Kwale/Ramisi Kinondo S.S/54 until disposal of the suit or until further orders
  2. 2.Costs shall be in the cause

Authorities

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Legislation

  • Land Registration ActSection 25(1)
  • Land Registration ActSection 26
  • Land Registration ActSection 80
  • Constitution of KenyaArticle 40(3)
  • Constitution of KenyaArticle 40(6)
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (1)

  • Giella vs. Cassman Brown & Co Ltd
    [1973] 1 EA 358
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court); interlocutory jurisdiction under Order 40 Rule 1 of the Civil Procedure Rules

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, "Tamu Ndoto Limited v Bakari Kassim Mjusi & another [2021] KEELC 2049 (KLR)", Case Analysis (2021). ELC Case (Kwale), interlocutory application dated 16 December 2019 (filed with plaint 16 December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2049/eng@2021-07-22

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