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ELCDismissedNyeri ELC (not stated in excerpt; arising from plaint dated 18th February 2019)· [2021] KEELC 3639 (KLR)

John Nguguna Kikumba v Hussein Hassan Hussein & another [2021] KEELC 3639 (KLR)

Environment and Land Court
21 April 2021
YAY. M. Angima
2,112 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to freeze a Nyeri land parcel because the buyer's family couldn't prove the 1969 purchase gave them any valid claim to it.

What this practically means

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Executive summary

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By a plaint dated 18th February 2019, the Plaintiff, administrator of the estate of Ernest Kihumba Chege, sued for recovery of Title No. Nyeri Municipality/Block 2 (Majengo)/567, alleging the deceased purchased it from Osopu Wembe in 1969 and that the Defendants fraudulently transferred it to the 1st Defendant. Together with the plaint he filed a notice of motion seeking an inhibition order restraining dealings with and construction on the suit property pending trial. The 1st Defendant opposed, asserting the property was allocated to his late father Hassan Hussein in 1940, denying Osopu Wembe's existence and authority to sell, contending the exhibited 'transfer' was a hand-altered sale agreement, and arguing the suit was an abuse of process following eviction under a decree in Nyeri CMCC No. 98 of 2018. The 2nd Defendant filed no response. The court framed two issues: whether the Plaintiff made out a case for interim relief, and costs. Examining the documents, the court found no evidence of Osopu Wembe's authority to sell for Hussein, that the sale agreement had been altered to appear as an unregistered transfer, and that entry in rates records proved nothing about lawful acquisition. Applying Giella v Cassman Brown, no prima facie case was established, and damages would adequately compensate. Applying Joseph Mumita Kipees on inhibition, risk of alienation alone was insufficient absent an arguable case and nugatory suit. The notice of motion was dismissed with costs to the 1st Defendant only.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for an interim injunction

Holding

No prima facie case was demonstrated; the alleged 1969 sale and the altered 'transfer' document did not establish that the deceased acquired a legal interest in the suit property

Reasoning

The court examined the exhibited 1969 sale agreement purportedly executed by Osopu Wembe on behalf of an unidentified Hussein. There was no power of attorney, authority, or grant of representation shown. The same document had been hand-altered into a 'TRANSFER' and was never registered. Rates records entry was held not to be proof of lawful acquisition, so the Giella prima facie threshold failed.

p. 3
02

Whether the Plaintiff was entitled to an order of inhibition under Section 68 of the Land Registration Act

Holding

No; only one of the three inhibition requirements (risk of alienation) was met

Reasoning

Applying the factors from Joseph Mumita Kipees, the court held the Plaintiff had not shown that refusal would render his suit nugatory or that he had an arguable case on his alleged interest. Risk of alienation alone cannot sustain an inhibition order, and damages would be an adequate remedy.

p. 3
03

Costs of the application

Holding

Costs awarded to the successful 1st Defendant

Reasoning

Applying the general rule that costs follow the event under Section 27 of the Civil Procedure Act and Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd, the court found no good reason to deprive the successful party of costs.

p. 3

Legal principles established

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  • An order of inhibition operates on the land register and does not restrain physical construction; an injunction may additionally be required
  • Entry in rates records is not evidence of lawful acquisition of title to land
  • In an inhibition application the applicant must show risk of alienation, that refusal would render the suit nugatory, and an arguable case; risk of alienation alone is insufficient
  • Costs follow the event under Section 27 of the Civil Procedure Act unless the court directs otherwise for good reason

Court orders

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  1. 1.The Plaintiff's notice of motion dated 18th February, 2019 is dismissed
  2. 2.Costs of the application awarded to the 1st Defendant only

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule (1) and (2)
  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A and 27
  • Land Registration ActSection 68(1)

Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Joseph Mumita Kipees (Suing as legal representative of the estate of Moses Kisento) v Nteri Merik Obo Kipaika and 2 Others
    [2014] eKLR
  • Hussein Janmohamed & Sons Vs Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
Jurisdiction invoked
Original jurisdiction under the Environment and Land Court Act; interlocutory application under Order 40 Rules (1) and (2) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act; inhibition sought under Section 68 of the Land Registration Act, 2012

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, "John Nguguna Kikumba v Hussein Hassan Hussein & another [2021] KEELC 3639 (KLR)", Case Analysis (2021). Nyeri ELC (not stated in excerpt; arising from plaint dated 18th February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3639/eng@2021-04-21

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