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ELCAllowed· [2021] KEELC 4275 (KLR)

Musa K Kibusia v Richard Kaplawat Chemjor & another [2021] KEELC 4275 (KLR)

Environment and Land Court
4 February 2021
MOM. A. Odeny
2,026 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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An Eldoret court froze all dealings over a disputed Baringo land parcel, protecting an occupant buyer until the ownership case is fully heard.

What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Eldoret on a notice of motion dated 29th July 2020 in which the plaintiff sought a temporary injunction and an order of inhibition over the parcel known as BARINGO/SALAWA/2715. The plaintiff's case was that the 1st defendant sold 15 acres of the suit parcel to one Luka Kipang Cheburet (now deceased) by a written agreement dated 26th January 2010, that the deceased paid the full purchase price and took possession, and that the plaintiff bought the land from the deceased's estate in 2015, paying in full and occupying since then. The plaintiff, lacking title because land adjudication was ongoing, discovered the property registered in the 2nd defendant's name, allegedly fraudulently. The defendants alleged the 2010 sale agreement was a forgery and that the deceased had bought a different parcel, BARINGO/SALAWA/2847, in 1987. The court framed two issues: whether the plaintiff made out a case for an injunction/preservation order and for an inhibition. Applying Giella v Cassman Brown and Nguruman Limited, the court found the plaintiff in admitted occupation, with disputed but arguable sale agreements and uncontroverted photographs of fencing, establishing a prima facie case where damages would not suffice. On inhibition, relying on Section 68(1) of the Land Registration Act, Shivabhai Patel and Dorcas Muthoni, the court held it had a duty to preserve the property. Both prayers were allowed as prayed, with costs to the plaintiff, pending hearing and determination of the suit.

Key legal issues

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01

Whether the plaintiff established a case for a temporary injunction under the Giella v Cassman Brown criteria

Holding

Yes - the plaintiff is in admitted occupation, holds disputed sale agreements showing an arguable case, and uncontroverted photographs show the defendants fencing the land, so damages would not suffice

Reasoning

The court found the plaintiff in occupation as admitted by the defendants, with sale agreements evidencing possible proprietary interest. Though the defendants allege forgery, at the interlocutory stage no conclusive merits findings are made. Uncontroverted photographs of fencing demonstrated threatened encroachment and possible disposal, making proceedings nugatory without an injunction.

p. 3
02

Whether an order of inhibition should issue over the suit title

Holding

Yes - inhibition preserves the suit property pending adjudication of the parties' rights under Section 68(1) of the Land Registration Act

Reasoning

Relying on Section 68(1) of the Land Registration Act and Shivabhai Patel v Manibhai Patel, the court held it has a duty to preserve disputed property. Applying Films Rover International, the course carrying the lower risk of injustice was inhibition, since the injustice to the plaintiff of refusal outweighed that to the defendants of grant.

p. 3

Legal principles established

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  • An applicant for a temporary injunction must establish a prima facie case with probability of success, irreparable injury not compensable by damages, and, if in doubt, that the balance of convenience lies in his favour
  • An order of inhibition bars the registered owner of disputed property from registering any transaction over it pending determination of the suit

Court orders

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  1. 1.Temporary injunction restraining the defendants/respondents from evicting the applicant, alienating, advertising for sale, offering for sale, selling, taking possession, leasing, transferring, encroaching on or otherwise disposing of the parcel known as BARINGO/SALAWA/2715 pending hearing and determination of the suit
  2. 2.Order of inhibition stopping further dealings, registration and transactions over BARINGO/SALAWA/2715 pending hearing and determination of the suit
  3. 3.Costs of the application to the plaintiff/applicant

Authorities

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Legislation

  • Land Registration ActSection 68(1)
  • Practice Directions on Proceedings in the Environment and Land Courts, and on Proceedings Relating to the Environment and the Use and Occupation of, and Title to Land and Proceedings in Other Courts (Gazette Notice No. 5178)Paragraph 32

Cases cited (7)

  • Ngungi Nthukire 3 others v Joseph Mbugi Neari 6 others
    [2019] eKLR
  • Shivabhai Patel v Manibhai Patel
    [1959] EA 907
  • Victoria Wangui Oganga Ogada v Mwangi Kihara & 2 others
    [2018] eKLR
  • Giella v Cassman Brown
    [1973] EA 348
  • Nguruman Limited v Jane Bonde Nielsen and 2 Others
    NRB CA Civil Appeal No. 77 of 2012 [2014] eKLR
  • Dorcas Muthoni & 2 others v Michael Ireri Ngari
    [2016] eKLR
  • Films Rover International & Others v Cannon Films Sales Ltd
    1986 3 All E.R 772
Jurisdiction invoked
Environment and Land Court jurisdiction over proceedings relating to title to land, including paragraph 32 of the Practice Directions on Proceedings in the Environment and Land Courts, and Section 68(1) of the Land Registration Act

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, "Musa K Kibusia v Richard Kaplawat Chemjor & another [2021] KEELC 4275 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4275/eng@2021-02-04

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