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ELCAllowedNotice of Motion dated 27/07/2020 (suit over PDP NO. ISL/117/65/07-19 / Block Isiolo Township 5/70/FR NO. 508/98)· [2021] KEELC 3092 (KLR)

Elizabeth Nkatha Omuse & 21 others v Kenya Linen Drapers Ltd & 2 others [2021] KEELC 3092 (KLR)

Environment and Land Court
26 May 2021
LMLUCY N. MBUGUA
1,783 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The applicants, being several plaintiffs in a land dispute over one acre (later five acres) in Mwangaza area, Isiolo, moved the court by notice of motion dated 27/07/2020 under Section 68 of the Land Registration Act seeking an order of inhibition restraining any dealings with PDP NO. ISL/117/65/07-19 and/or Block Isiolo Township 5/70/FR NO. 508/98 pending the hearing and determination of the suit. The plaintiffs, who have long occupied and developed the land, alleged that upon engaging a surveyor to remark boundaries they discovered the land had been allocated to the 1st respondent, Kenya Linen Drapers Ltd, purportedly in 1992. The respondent opposed through a replying affidavit sworn by its director Antony Kinyua, stating it was allocated the unsurveyed industrial plot in 1993, was issued a letter of allotment dated 26/02/1993, and later a beacon certificate and certificate of lease on 23/7/2019, and pays rates to the county government of Isiolo. The applicants filed a further affidavit challenging the veracity of the respondent's acquisition. The sole issue framed was whether an order of inhibition should be granted. The court held that an inhibition under Section 68 bars the registered owner from registering any transaction over disputed property pending disposal of the suit, and, like an interlocutory injunction, preserves the property. Since both sides claim ownership and the disputed facts cannot be resolved at the interlocutory stage, and applying the lower-risk-of-injustice principle, the court allowed the application, with costs to abide the outcome of the suit.

Key legal issues

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01

Whether an order of inhibition should issue over the suit land pending trial

Holding

The court allowed the inhibition, holding that both parties claim ownership and disputed facts must await full trial; an inhibition preserves the land without affecting either party's claimed rights.

Reasoning

Section 68(1) empowers the court to inhibit registration of any dealing with land. Like an interlocutory injunction, an inhibition preserves the property in dispute pending trial. Both sides claim ownership, raising issues that can only be determined at a full trial. No prejudice would be caused to the respondent if the order issues, and the court should take the course carrying the lower risk of injustice. Balancing the competing interests, justice is best served by preserving the land while proprietary interests are determined.

p. 2

Legal principles established

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  • An order of inhibition under Section 68 of the Land Registration Act bars the registered owner of disputed property from registering any transaction over it until the suit is disposed of, and like an interlocutory injunction preserves the property pending trial.
  • At interlocutory stage the court cannot resolve disputed facts; where both sides claim ownership, the course carrying the lower risk of injustice should be taken.

Court orders

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  1. 1.The application dated 27.7.2020 is allowed
  2. 2.Costs of the application shall abide the outcome of the suit

Authorities

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Legislation

  • Land Registration ActSection 68(1)
  • Land Registration ActSection 24

Cases cited (6)

  • Giella Vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Paul Gitonga Wanjau vs. Gathuthi Tea Factory Company Ltd & 2 Others
    (2016) eKLR
  • Shadrack Kuria Kimani V Stephen Gitau Ngang'a & another
    [2017] eKLR
  • Lucy Nchebere V Rose Ndululu Musee
    [2015] eKLR
  • Dorcas Muthoni & 2 others v Michael Ireri Ngari
    [206] eKLR
Jurisdiction invoked
Section 68 of the Land Registration Act

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, "Elizabeth Nkatha Omuse & 21 others v Kenya Linen Drapers Ltd & 2 others [2021] KEELC 3092 (KLR)", Case Analysis (2021). Notice of Motion dated 27/07/2020 (suit over PDP NO. ISL/117/65/07-19 / Block Isiolo Township 5/70/FR NO. 508/98). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3092/eng@2021-05-26

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