Monica Wambui Kabogo & 2 others v Philip Ondieki Mayenga & 3 others [2021] KEELC 4192 (KLR)
The bottom line
#The Environment and Land Court refused to freeze two Embakasi plots because registered titles stand unless fraud is proven at trial.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants established a prima facie case with a probability of success
They did not; the 3rd defendant confirmed allocating the suit plots to the 1st and 2nd defendants, who hold certificates of lease
The court noted the 3rd defendant, the original landowner, confirmed by affidavit that LR Nos 105/1272 and 105/1273 were legally allocated to the 1st and 2nd defendants after payment of requisite fees. It is not in dispute that the 1st and 2nd defendants hold certificates of lease, the 2nd defendant's having been issued on 27th March 2019 before the suit. Under section 26 of the Land Registration Act, those titles are prima facie and indefeasible, and it falls on the plaintiffs to prove at trial that the leases were fraudulently issued.
Whether the applicants would suffer irreparable loss not compensable by damages
They failed to demonstrate irreparable loss
Applying Oloo v Barclays Bank of Kenya Ltd, the court held that the plaintiffs did not show they would suffer harm incapable of compensation by an award of damages should the injunction be refused. Together with the failure to establish a prima facie case, this disposed of the Giella v Cassman Brown threshold and justified dismissal of the application without resort to the balance of convenience.
Legal principles established
#- A registered proprietor's certificate of lease is prima facie evidence of absolute and indefeasible ownership, challengeable only on proof of fraud or misrepresentation, or where acquired illegally, unprocedurally or through a corrupt scheme
- An applicant for injunction must make full disclosure of all relevant facts and show a legal or equitable right requiring protection
Court orders
#- 1.The notice of motion dated 27th January 2020 is dismissed
- 2.Costs to abide the outcome of the main suit
- Jurisdiction invoked
- Order 40 rule 1 and Order 51 of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Monica Wambui Kabogo & 2 others v Philip Ondieki Mayenga & 3 others [2021] KEELC 4192 (KLR)", Case Analysis (2021). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4192/eng@2021-02-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.