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ELCPartially AllowedNot stated in the extract (suit filed in the year 2000, Kajiado)· [2021] KEELC 3747 (KLR)

Kisarei Siringet & another v Nelson Ngwili & 22 others [2021] KEELC 3747 (KLR)

Environment and Land Court
8 April 2021
1,926 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 Kajiado court froze all dealings on disputed land, letting long-time occupiers stay put until the 20-year-old case is finally heard.

What this practically means

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Executive summary

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The 3rd, 4th, 11th and 13th Defendants moved the court by Notice of Motion dated 2nd October 2020 seeking interim orders restraining the 2nd Plaintiff, Raphael Kisarei, from selling, constructing on or trespassing on subdivisions of land parcel Kajiado/Kaputiei Central/461 pending determination of a suit filed in 2000. They deponed that they purchased portions of the parcel from the 1st Plaintiff under written agreements made between 1987 and 1993, paid the full consideration, and have remained in occupation, but the Plaintiffs never effected subdivision or transfer. They alleged the 2nd Plaintiff, the area chief, was showing the land to prospective buyers and harassing them. The 2nd Plaintiff denied being the registered owner, denied being an administrator of the deceased 1st Plaintiff's estate, denied any intention to sell, and objected that the application was inordinately delayed and failed to meet the injunction threshold. Applying the Giella v Cassman Brown principles as informed by Mrao and Nguruman, Christine Ochieng J found the Applicants had established a prima facie case, that the injury they faced was not speculative given their occupation and agreements, and that the balance of convenience favoured preservation. However, because the 2nd Plaintiff was not the registered proprietor and the 1st Plaintiff was deceased, the court declined the injunction as sought. Instead it ordered maintenance of the status quo with the Applicants remaining on their portions, directed the Land Registrar Kajiado to register an inhibition against the parcel against any dealings, lease or charge pending trial, with costs in the cause.

Key legal issues

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01

Whether the Applicants established a prima facie case with a probability of success

Holding

Yes - their claim over the suit land is not baseless, as they hold sale agreements with the deceased 1st Plaintiff and have been in occupation, though the substantive disputes are reserved for trial

Reasoning

The Applicants produced sale agreements entered with the 1st Plaintiff between 1987 and 1993 and showed long occupation of their portions. The 2nd Plaintiff did not dispute their presence on the land. Although the transactions date back to the 1990s and no transfers were effected, the court found the claim not baseless, meeting the Mrao threshold of an apparent infringement, while leaving contested issues for full trial.

p. 2
02

Whether the Applicants would suffer irreparable loss not compensable by damages

Holding

Yes - the injury is not speculative given their occupation and agreements, and preservation is warranted

Reasoning

The court applied Nguruman on irreparable injury. Since the Applicants are in occupation and hold agreements with the deceased registered owner, the court found the injury they stand to suffer would not be speculative, and that preservation of the substratum of the suit was appropriate pending trial.

p. 2
03

Whether the balance of convenience favoured preservation of the suit property

Holding

Yes - if title is not preserved the property may be wasted away

Reasoning

On the third Giella principle, the court noted the competing claims: the Plaintiffs sought injunctive relief against the Defendants while the Applicants claimed to have purchased and reside on their portions. The court concluded that unless the title was preserved, the property risked being wasted, tilting the balance of convenience towards an inhibition and status quo order.

p. 2

Legal principles established

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  • A prima facie case is one in which, on the material presented, the court concludes there is an apparent infringement of the applicant's rights
  • Irreparable injury must be actual, substantial and demonstrable and not adequately compensable by damages; speculative injury does not suffice

Court orders

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  1. 1.The obtaining status quo be maintained where the Applicants are to remain in their respective portions of the suit land until the hearing and determination of the suit
  2. 2.The Land Registrar Kajiado be and is hereby directed to register an inhibition order against land parcel number Kajiado/Kaputiei Central/461 of any dealings, lease or charge pending the hearing and determination of the suit
  3. 3.The costs will be in the cause
  4. 4.Parties urged to comply with Order 11 of the Civil Procedure Rules and set the suit down for hearing as soon as possible

Authorities

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Legislation

  • Civil Procedure RulesOrder 11

Cases cited (8)

  • Joseph Ndirangu Waheho t/a Zeeco Auto & 2 Others v Cooperative Bank of Kenya Ltd
    (2019) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    CA No. 77 of 2012 (2014) eKLR
  • Mrao v First American Bank of Kenya Limited & 2 Others
    (2003) KLR 125
  • American Cynamid Co. v Ethicon Limited
    (1975) UKHL 1
  • Kipkoech Lagat t/a Kaptarakwa Enterprises & 23 others v William Bayas & 3 Others
    (2013) eKLR
  • Francis Jumba Enziano & Others v Bishop Philip Okeyo & Others
    Nairobi High Court Civil Case No. 1128 of 2001 (unreported)
  • Giella v Cassman Brown & Co. Ltd
    (1973) EA 358
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR
Jurisdiction invoked
Not expressly stated; the court exercised its inherent and statutory powers to grant interim preservation orders (injunction and inhibition) pending trial under the Civil Procedure Rules

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, "Kisarei Siringet & another v Nelson Ngwili & 22 others [2021] KEELC 3747 (KLR)", Case Analysis (2021). Not stated in the extract (suit filed in the year 2000, Kajiado). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3747/eng@2021-04-08

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