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ELCDismissedNotice of Motion dated 8th July 2020 (suit number not stated in judgment)· [2021] KEELC 3069 (KLR)

Khamis Athman Mwanjira & another v Athman Ngovi (Rep of the Estate of Omar Rajimbo) & 7 others [2021] KEELC 3069 (KLR)

Environment and Land Court
27 May 2021
CYC.K. Yano
1,856 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa court refused to block compensation for land taken for the Dongo Kundu bypass because a registered title wins unless fraud is proven.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Mombasa determined a Notice of Motion dated 8th July 2020 by which the plaintiffs sought interlocutory injunctions restraining the 1st defendant from claiming Plot No. KWALE/TSUNZA/1165, restraining the 5th defendant from paying compensation for that plot, and restraining the 3rd and 4th defendants from registering anyone as proprietor pending determination of the rightful owner. The plaintiffs claimed the land belonged to their deceased father but was secretly surveyed and registered in the name of the 1st defendant's late father, and that the 1st defendant intended to collect compensation following the land's compulsory acquisition for the Dongo Kundu bypass. The 1st defendant countered that the land was allocated through lawful setting-apart and adjudication processes, which resolved the dispute in his father's favour, and that he had sold the land to the 8th defendant, Tasna Investments Limited. The 8th defendant, a purchaser for value, invoked Section 26 of the Land Registration Act on indefeasibility of title. Applying the Giella v Cassman Brown principles, C.K. Yano J found no prima facie case with probability of success: title was registered in the 8th defendant's name, no fraud was alleged against it, and the adjudication dispute had been determined against the plaintiffs. The compensation award being known, the plaintiffs could be adequately compensated in damages and no irreparable harm was shown. The application was dismissed with costs to the 1st and 8th defendants on 27th May 2021.

Key legal issues

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01

Whether the plaintiffs established a prima facie case for interlocutory injunction

Holding

No prima facie case established; title is registered in the 8th defendant's name, the adjudication dispute was determined in favour of the 1st defendant's late father, and no fraud is alleged against the 8th defendant

Reasoning

The court noted it was undisputed that the suit property is registered in the 8th defendant's name, which purchased it from the 1st defendant who inherited it from his father. Adjudication proceedings over the land had been determined in favour of the 1st defendant's side. Under Section 26 of the Land Registration Act, the registered title is prima facie indefeasible and challengeable only for fraud or illegality, none of which was alleged against the 8th defendant.

p. 2
02

Whether damages would be an inadequate remedy

Holding

No irreparable harm; compensation award is known and quantifiable

Reasoning

The suit property had been compulsorily acquired for the Dongo Kundu bypass and the compensation award was known. Any wrong the plaintiffs might prove at trial could be remedied by an award of damages, so the irreparable harm limb of the Giella test failed and the injunction could not issue.

p. 2

Legal principles established

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  • An interlocutory injunction requires a prima facie case with probability of success, irreparable injury not compensable in damages, and, in doubt, the balance of convenience
  • A registered title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, or illegality/corruption per Section 26 of the Land Registration Act

Court orders

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  1. 1.The notice of motion dated 8th July 2020 is dismissed with costs to the 1st and 8th defendants

Authorities

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Legislation

  • Civil Procedure Actoverriding objective provisions (general reference)
  • Land Registration ActSection 26(1)
  • Land Adjudication Actnot specified

Cases cited (9)

  • Giella –v- Cassman Brown & Co. Ltd
    (1973) EA 358
  • New Ocean Transport Limited & Another –v- Anwar Mohammed Bayusuf Limited
    CA 16 of 2014
  • Felix Construction Solutions Ltd –v- Vernadel Court Limited
    (2012) eKLR
  • Suleiman –v- Amboseli Resort Limited
    (2004) 2 KLR
  • Nguruman Limited –v- Jan Bonde Nielsen & 2 Others
    (2014) eKLR
  • Mrao Limited –v- First American Bank of Kenya Ltd & 2 Others
    (2003) KLR 125
  • Civil Appeal No. 160 of 1995 (Court of Appeal at Kisumu)
    Civil Appeal No. 160 of 1995
  • Samuel D. Omwenga Angwenyi –v- National Land Commission & 2 Others
    (2019) eKLR
  • Charles Karathe Kiarie & 2 Others –v- Administrators of the Estate of John Wallace Mathare (deceased) & 5 Others
    (2013) eKLR
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court under the Civil Procedure Act in an interlocutory application within a pending suit

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, "Khamis Athman Mwanjira & another v Athman Ngovi (Rep of the Estate of Omar Rajimbo) & 7 others [2021] KEELC 3069 (KLR)", Case Analysis (2021). Notice of Motion dated 8th July 2020 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3069/eng@2021-05-27

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