Erick Geke Nyagarama & 2 others v Diamond Property Merchant Ltd & 4 others [2021] KEELC 4208 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the court could direct the Registrar to lodge a caveat/caution on the suit property
No; the statutory procedure under Section 71 of the Land Registration Act must first be invoked before the Registrar
Section 71 of the Land Registration Act vests the caution power in the Registrar, exercisable in the prescribed form and potentially supported by a statutory declaration. The court held the Plaintiffs bypassed this statutory scheme without showing any prior application to the Registrar, so the court could not be asked to assume a jurisdiction exercisable by the Registrar.
Whether the Plaintiffs demonstrated a legal or beneficial interest entitling them to relief
No; the claim of full payment as purchasers was unsupported by any evidence such as sale agreements
The Plaintiffs asserted they had fully paid the purchase price and developed the land, but annexed no sale agreements to their supporting affidavit. On that basis alone their claim to be purchasers for value with an enforceable interest failed, undermining any basis for injunctive or cautionary relief against the Defendants or the chargee bank.
Whether the court could compel the chargee bank to deposit the original title in court
No; the property is encumbered by a registered charge and the bank lawfully holds the title as chargee
The suit property is already encumbered by a registered charge in favour of the 5th Defendant, which takes precedence over other entries, and the original title is in the chargee's possession. The court found no legal basis for the drastic order sought directing the bank to surrender or deposit the title document in court.
Whether the ex-parte orders of 7th July 2020 should be set aside
Yes; the 5th Defendant's application to set aside those orders was allowed as prayed
The 5th Defendant contended, unchallenged successfully, that the mandatory injunction orders were issued without affording it audience, were based on speculation, and that the Plaintiffs had not met the threshold for a mandatory injunction. The court allowed that application as prayed when dismissing the Plaintiffs' application.
Legal principles established
#- The power to lodge a caution on a title is bestowed on the Land Registrar, is discretionary, and must be exercised after due process
- Where a special procedure for redress is prescribed by statute, that procedure must be strictly followed (as held in Speaker of the National Assembly v James Njenga Karume)
Court orders
#- 1.Dismissal of the Plaintiffs' Application dated 23rd June, 2020 with costs
- 2.Allowance of the 5th Defendant's Application dated 28th July, 2020 as prayed
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over land disputes (not expressly cited in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Erick Geke Nyagarama & 2 others v Diamond Property Merchant Ltd & 4 others [2021] KEELC 4208 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4208/eng@2021-02-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.