Mungai Ngaruiya v Paul Maingi Makau & 5 others [2021] KEELC 2904 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Plaintiff established a prima facie case
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
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.
Whether irreparable damage and balance of convenience favoured either party
It is the Plaintiff who would suffer irreparable damage; the 6th Defendant cannot invoke balance of convenience having developed pendente lite
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.
Adequacy of the Plaintiff's claimed change of user to legitimise the 6th Defendant's development
The Plaintiff's 2013 change of user was for his own benefit and did not authorise the 6th Defendant to develop the property
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.
Legal principles established
#- 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
#- 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.The Officer Commanding Station (O.C.S), Mlolongo Police Station, to enforce the order
- 3.The 6th Defendant to pay the costs of the Application dated 23rd September, 2019
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.