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ELCOtherBungoma High Court Civil Suit (plaint dated 20th August 2018) — number not stated in judgment· [2021] KEELC 3153 (KLR)

Shaiwaz Sadrudin Jiwa v Abdillahi Hassan Abdirihaman [2021] KEELC 3153 (KLR)

High Court of Kenya
27 May 2021
BOBoaz N. Olao
2,589 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 refused to freeze disputed land because the defendant claimed no ownership and filed no counter-claim, then sent the case to the Magistrate's Court.

What this practically means

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Executive summary

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The plaintiff sued for an order compelling the defendant to surrender original title deeds for land parcels MALAKISI/TOWNSHIP/375, 413 and 419, which he admitted collecting from the Bungoma Land Registry in 2016. The defendant admitted the plaintiff's ownership but pleaded that, as the plaintiff's agent since 2011, he incurred expenses including adjudication fees, survey fees and stamp duty, and was holding the title deeds as security for unpaid dues; he also alleged the suit was an attempt to defeat his claim in a separate case against the plaintiff seeking Kshs. 6,100,000/-. The defendant then brought a Notice of Motion dated 11th November 2020 seeking inhibition, conservatory and status quo orders over the parcels, contending the plaintiff was transferring them to a third party. The plaintiff opposed the application as frivolous, vexatious and an abuse of process, noting the defendant's cautions on the titles remained in place. The court, applying the Supreme Court's exposition of conservatory orders in Gatirau Peter Munga, held that since the defendant admitted the plaintiff's ownership and filed no Counter-Claim for fees or any interest in the land, there was no prima facie case supporting interlocutory relief; such orders cannot be granted in vacuo and can only issue in the suit where the land is in dispute. The court also observed that the claim — surrender of title deeds rather than ownership — did not warrant the High Court's pecuniary jurisdiction. The application was dismissed with costs to the plaintiff, and the suit was transferred to the Chief Magistrate's Court, Bungoma, for hearing and final disposal.

Key legal issues

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01

Entitlement to interlocutory relief without a Counter-Claim

Holding

The defendant, who admits the plaintiff's ownership and filed no Counter-Claim, has no prima facie case supporting conservatory or inhibitory orders

Reasoning

The defendant admitted the parcels are registered in the plaintiff's name and that he holds the title deeds only as security for fees. Having filed no Counter-Claim for fees or any portion of the land, there is no claim to which interlocutory relief could attach. Such orders cannot be granted in vacuo. Ownership being undisputed, preservation orders belong in the forum where ownership is disputed, namely the Chief Magistrate's Court case.

p. 3
02

Jurisdiction of the High Court over the suit

Holding

The suit ought to have been filed in the Subordinate Court since the only claim is for surrender of title deeds, not the value of the land

Reasoning

The plaintiff pleaded jurisdiction based on the value of the titles and developments (over Kshs. 64,000,000), but the actual claim is only for surrender of title deeds, ownership being conceded. Even a Counter-Claim for the defendant's fees would not exceed Kshs. 5 million, within the Chief Magistrate's Court's pecuniary jurisdiction. The suit was therefore transferred to the Chief Magistrate's Court, Bungoma.

p. 4

Legal principles established

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  • Interlocutory conservatory or injunctive reliefs cannot be granted in the absence of a Counter-Claim or any claim over the property; such orders cannot issue in vacuo
  • Conservatory or inhibitory orders over land can only issue in the suit in which that land is in dispute
  • An inhibition order under Section 68(1) of the Land Registration Act is similar to an interlocutory injunction

Court orders

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  1. 1.The application be and is hereby dismissed
  2. 2.The plaintiff shall have the costs of the application
  3. 3.This suit is transferred to the Chief Magistrate's Court Bungoma for hearing and final disposal, to be mentioned before the Chief Magistrate on 8th June 2021

Authorities

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Legislation

  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure ActSections 3A and 63(e)
  • Land Registration ActSection 68(1)

Cases cited (3)

  • Gatirau Peter Munga v Dickson Mwenda Kithinji and Others
    2014 eKLR
  • Giella v Cassman Brown and Co E.A Ltd
  • Mrao v First American Bank of Kenya Ltd & 2 Others
    C.A Civil Appeal No 39 of 2002 [2000 eKLR]
Jurisdiction invoked
Unlimited original jurisdiction of the High Court; the court found the suit ought to have been filed in the Subordinate Court and ordered transfer (Civil Procedure 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, "Shaiwaz Sadrudin Jiwa v Abdillahi Hassan Abdirihaman [2021] KEELC 3153 (KLR)", Case Analysis (2021). Bungoma High Court Civil Suit (plaint dated 20th August 2018) — number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3153/eng@2021-05-27

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