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ELCAllowedNot stated in the judgment· [2021] KEELC 4034 (KLR)

Nicholas Muchina Muiruri & another v Salesio Kiarie Thathi & 4 others [2021] KEELC 4034 (KLR)

Environment and Land Court
11 March 2021
2,508 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~10 min to read original · ~4 min brief

The bottom line

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The Kajiado Environment and Land Court blocked a bank from auctioning disputed land, ruling that fraud allegations over the title must be fully heard first.

What this practically means

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Executive summary

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The Plaintiffs, who inherited land parcel NGONG/NGONG/38954 from their late father, moved by Notice of Motion dated 8th May, 2020 seeking a prohibitory injunction restraining the 3rd and 4th Defendants from entering, transferring, leasing, further charging or exercising statutory power of sale over the suit land pending determination of the suit. They alleged that despite never transferring the land, a chain of transfers occurred between 2018 and 2019 ending with the 3rd Defendant charging it to the 4th Defendant (NCBA Bank, formerly NIC Bank) for Kshs. 15,200,000, and reported the matter to the CID. The 1st and 5th Defendants did not respond; the 2nd Defendant disclaimed any transaction, alleging forgery; the 4th Defendant claimed to be an innocent chargee for value without notice, having conducted due diligence including a search and valuation. The court framed a single issue: whether a temporary injunction should issue. Applying Giella v Cassman Brown, Mrao and Nguruman, the court found the Plaintiffs were registered proprietors before the disputed transfers, that fraud was alleged and under investigation, and that a missing link existed in how the 3rd Defendant acquired title - establishing a prima facie case. The injury from a public auction before ownership was determined would be irreparable, and the balance of convenience favoured the Plaintiffs because the 4th Defendant held only a charge over a disputed title. The application was allowed and costs were awarded in the cause.

Key legal issues

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01

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

Holding

Yes - the Plaintiffs were registered proprietors before the disputed transfers, fraud is alleged and under CID investigation, and there is a missing link in how the 3rd Defendant acquired title.

Reasoning

The Green Card shows the Plaintiffs were registered as proprietors on 27th February, 2015. The 2nd Defendant denies transacting over the land and asserts forgery; the 3rd Defendant did not enter appearance despite its name appearing twice on the Green Card. Fraud alleged and under CID investigation raises a triable issue. The court found a missing link in the chain of title, justifying a full hearing and establishing a prima facie case.

p. 3
02

Whether the Plaintiffs would suffer irreparable loss not compensable by damages

Holding

Yes - the injury is not speculative; disposal of the land by public auction before determination of ownership would cause grave and irreparable injury.

Reasoning

The 1st, 2nd and 3rd Defendants did not controvert the Plaintiffs' averments or their possession. The suit land is charged to the 4th Defendant, which is moving to exercise its statutory power of sale following the 3rd Defendant's loan default. Relying on Nguruman, the court held the injury would be actual, substantial and not measurable in damages.

p. 3
03

Where the balance of convenience lies

Holding

With the Plaintiffs, since preservation is needed to prevent the land being wasted away, and the 4th Defendant merely holds a charge over a disputed title.

Reasoning

The court found that if the land is not preserved it would be wasted away. The 4th Defendant's claim that convenience favoured it was rejected because it already holds a charge over a title whose validity is in dispute.

p. 3

Legal principles established

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  • A substantial allegation of fraud raises a triable issue and the party alleging fraud must be given an opportunity to prove it.
  • Injury is irreparable where monetary compensation cannot adequately remedy it.

Court orders

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  1. 1.Notice of Motion application dated 8th May, 2020 allowed
  2. 2.Prohibitory injunction granted against the 3rd and 4th Defendants, their employees, servants or agents, from entering, remaining on, transferring, leasing, creating a further charge over or exercising statutory power of sale in respect of land parcel NGONG/NGONG/38954 pending determination of the suit
  3. 3.Costs in the cause

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 40
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 40 Rule 1

Cases cited (14)

  • Giella Vs Cassman Brown & Co. Ltd
    (1974) EA 358 / (1973) EA 358
  • Mrao Limited Vs First American Bank of Kenya Limited & 2 others
    (2003) KLR 125
  • Nguruman Limited V Jan Bonde Nielsen & 2 Others
    Civil Appeal No. 21 of 2014 / CA No. 77 of 2012
  • UCB Vs Mukoome Agencies
    (1982) HCB 22
  • Republic Vs District Commissioner Machakos & Another Ex parte Kakui Mutiso
    (2014) eKLR
  • Francis Maina Njogu V Nicolas Kiragu Ngacha
    (2017) eKLR
  • Elijah Nyakeri Nyangwara Vs Stephen Mungai Njuguna & Another
    (2013) eKLR
  • Esther Ndegi Njiru & Another V Leonard Gatei
    (2014) eKLR
  • Susan Njeri Karo V Catherine Njeri Njoroge t/a Licat Enterprises & 2 others
    (2016) eKLR
  • William Kiprotich Cherus V Stanley Kiplangat Rono & another
    (2014) eKLR
  • Peter Njoroge Nganga V Statutory Manager For United Assurance Company Limited & Another
    (2020) eKLR
  • Board of Governors, Moi High School, Kabarak & Another V Malcolm Bell
    (2013) eKLR
  • Kennedy Muchilwa V Charles Peterson Ogwok & 2 others
    (2018) eKLR
  • Paul Gitonga Wanjau Vs Gathuthis Tea Factory Ltd & 2 Others
    (2016) eKLR
Jurisdiction invoked
Article 40 and 159(2)(d) of the Constitution; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 40 Rule 1 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nicholas Muchina Muiruri & another v Salesio Kiarie Thathi & 4 others [2021] KEELC 4034 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4034/eng@2021-03-11

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