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ELCPartially AllowedNot stated in judgment· [2021] KEELC 2904 (KLR)

Mungai Ngaruiya v Paul Maingi Makau & 5 others [2021] KEELC 2904 (KLR)

Environment and Land Court
11 June 2021
6,342 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped a Kshs 90 million property buyer from developing disputed Syokimau land because the seller's title chain was unexplained and construction began while injunction orders were in force.

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 Machakos (Angote, J) on three related interlocutory applications: two by the Plaintiff seeking temporary injunctions restraining the Defendants from interfering with, disposing of, or developing L.R. No. 12715/11 in Syokimau, and one by the 6th Defendant seeking discharge or review of the injunction granted on 25th September, 2019. Both the Plaintiff and the 6th Defendant claimed ownership: the Plaintiff produced a 1988 registration from Syokimau Farm Limited, three official searches, rates demand notices dating from 2003, NEMA and WARMA borehole approvals (2011–2012), and a change of user approval (2013). The 6th Defendant claimed to have purchased the land for Kshs. 90,000,000 from the 4th Defendant, administrator of the estate of Elizabeth Kamene Nding'a, who was allegedly allotted the land in 1981 but in whose name the land was only registered in 2015–2016. The court applied the Giella v Cassman Brown and Nguruman tests. It found the Plaintiff's registration and possession first in time and held he had established a prima facie case, while the 6th Defendant failed to explain the chain of title or its due diligence failures regarding the borehole on the land. The court held the 6th Defendant, having commenced construction pendente lite and during the pendency of injunction orders, could not claim irreparable harm or rely on the balance of convenience. The Plaintiff's applications were allowed, injunction issued to be enforced by the OCS Mlolongo, and the 6th Defendant's application was dismissed with costs.

Key legal issues

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01

Whether the Plaintiff established a prima facie case

Holding

The Plaintiff established a prima facie case with chances of success as first registrant (1988) and in possession, while the 6th Defendant failed to explain the chain of title leading to its 2016–2018 registration

Reasoning

The Plaintiff's registration in 1988 was first in time, corroborated by three official searches, rates demand, borehole approvals (NEMA/WARMA) and change of user (2013). The 6th Defendant could not explain why land surveyed under a 1984 Deed Plan was only registered to Syokimau Farm Limited in 2015 and transferred in 2016, nor why it did not inquire into the existing borehole during due diligence.

p. 6
02

Whether irreparable damage and balance of convenience favoured either party

Holding

It is the Plaintiff who would suffer irreparable damage; the 6th Defendant cannot invoke balance of convenience having developed pendente lite

Reasoning

The 6th Defendant knew of the suit and existing injunction orders when it commenced construction after obtaining NCA compliance on 15th August, 2019, well after the suit was filed in July, 2018 and orders issued. Possession taken and construction carried out pendente lite cannot ground a claim of irreparable harm, as one who seeks equity must do equity.

p. 7
03

Adequacy of the Plaintiff's claimed change of user to legitimise the 6th Defendant's development

Holding

The Plaintiff's 2013 change of user was for his own benefit and did not authorise the 6th Defendant to develop the property

Reasoning

The court rejected the argument that because the Plaintiff had obtained change of user to multi-dwelling, the 6th Defendant's similar use caused no harm. The change of user was obtained by the Plaintiff for his own development, not for the benefit of the 6th Defendant.

p. 7

Legal principles established

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  • A party who commences development of land pendente lite and during the pendency of injunction orders cannot claim irreparable damage or rely on the balance of convenience

Court orders

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  1. 1.Pending the hearing and determination of the suit, the Defendants including the 6th Defendant, their agents, servants and/or employees are restrained from trespassing, entering, developing, interfering, disposing, alienating or dealing in any manner whatsoever with parcel of land known as L.R. No. 12715/11 situate in Syokimau, Machakos County
  2. 2.The Officer Commanding Station (O.C.S), Mlolongo Police Station, to enforce the order
  3. 3.The 6th Defendant to pay the costs of the Application dated 23rd September, 2019
  4. 4.The 6th Defendant's Application dated 30th September, 2019 is dismissed with costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (interlocutory applications in a pending suit); no specific constitutional provision invoked

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, "Mungai Ngaruiya v Paul Maingi Makau & 5 others [2021] KEELC 2904 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2904/eng@2021-06-11

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