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ELCDismissedNot stated in the judgment (Appeal from Thika CMCC No. 16 of 2015)· [2021] KEELC 2588 (KLR)

Daniel Gitau Kuria v Muthoni Mbugua Ndumo & 3 others [2021] KEELC 2588 (KLR)

Environment and Land Court
15 July 2021
LGL. Gacheru
1,104 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to freeze a land title where the claim was just an ordinary money debt that can be recovered later.

What this practically means

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Executive summary

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This was a ruling on a Notice of Motion dated 14th August 2020 in an appeal before the Environment and Land Court at Thika, brought by the Appellant, Daniel Gitau Kuria, under Order 46 Rule 4(1)(2)(3) of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act. He sought registration of a Prohibition Order on land parcel Ruiru/Ruiru East Block/5404 pending the hearing and determination of his appeal against a judgment delivered on 29th May 2020 in Thika CMCC No. 16 of 2015, in which he claimed professional survey charges of Kshs.550,000/=. He argued that the suit property had been transferred to the 1st Respondent and that without an inhibitory order the appeal would be rendered nugatory. The 1st Respondent opposed the application as baseless. The sole issue framed was whether the Applicant had satisfied the conditions for grant of a Prohibitory Order. Applying Section 68 of the Land Registration Act and the Dorcas Muthoni v Michael Ireri Ngari decision, the court held that an inhibition is akin to a prohibitory injunction and requires good grounds. The Applicant placed no evidence before the court to warrant conservatory orders; the lower court had found he had more than compensated himself, the land having sold for Kshs.4,200,000/=, and his Kshs.550,000/= claim was recoverable as an ordinary civil debt. The application was dismissed entirely with costs to the 1st Respondent. The Appellant was directed to file the Record of Appeal within 30 days for admission or summary dismissal under section 79B of the Civil Procedure Act, and to prosecute the appeal expeditiously.

Key legal issues

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01

Whether the conditions for grant of a prohibitory order under Section 68 of the Land Registration Act were satisfied

Holding

The application failed; the Applicant did not demonstrate good grounds for the inhibition

Reasoning

The court applied the test that an inhibition, like an interlocutory injunction, requires good grounds and preserves the property in dispute. The Applicant sought to protect a claim of Kshs.550,000/= for survey services, but the lower court had found he had more than compensated himself since the land sold for Kshs.4,200,000/=. The claim is recoverable as an ordinary civil debt and would not be rendered nugatory, so the 1st Respondent should enjoy the fruits of his judgment.

p. 2

Legal principles established

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  • An applicant for a prohibitory order (inhibition) under Section 68 of the Land Registration Act must establish good grounds, as the order functions like a prohibitory injunction preserving disputed property pending trial
  • A claim for professional/survey charges of Kshs.550,000/= is recoverable as a civil debt and does not justify inhibition of title where the claimant has already benefited from the sale of the land

Court orders

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  1. 1.The Notice of Motion dated 14th August 2020 is dismissed entirely with costs to the 1st Respondent
  2. 2.The Appellant is directed to file the Record of Appeal within 30 days from the date of the order and have the matter placed before the Judge for either admission or summary dismissal of the Appeal under section 79B of the Civil Procedure Act

Authorities

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Legislation

  • Civil Procedure RulesOrder 46 Rule 4(1)(2)(3)
  • Civil Procedure ActSections 1A, 3A and 79(B)
  • Land Registration ActSection 68(1)
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (1)

  • Dorcas Muthoni & 2 Others v Michael Ireri Ngari
    (2016) eKLR
On appeal from
Chief Magistrate's Court, Thika
CMCC No. 16 of 2015
Jurisdiction invoked
Order 46 Rule 4(1)(2)(3) of the Civil Procedure Rules and 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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Later judgments citing this (7)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Daniel Gitau Kuria v Muthoni Mbugua Ndumo & 3 others [2021] KEELC 2588 (KLR)", Case Analysis (2021). Not stated in the judgment (Appeal from Thika CMCC No. 16 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2588/eng@2021-07-15

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