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ELCAllowedELC Case No 687 of 2017· [2021] KEELC 4393 (KLR)

Isaac Gathungu Wanjohi v Moses Kiruti Lempaso, Grace Waithira & Nixon Kiruti (Environment & Land Case 687 of 2017) [2021] KEELC 4393 (KLR)

Environment and Land Court
8 February 2021
COChristine Ochieng
1,526 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court confirmed that a registered landowner who bought at auction can get a court order blocking trespassers.

What this practically means

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Executive summary

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The Plaintiff, Eng. Isaac Gathungu Wanjohi, sued the three Defendants seeking a mandatory injunction restraining them from trespassing on or interfering with land parcel LR KAJIADO/KITENGELA/27302, together with costs and interest. His claim arose from the purchase of the suit land at a public auction on 21st December 2012 advertised in the Daily Nation, where the land belonging to Ole Kasasi Limited had been charged to Consolidated Bank of Kenya. He bid Kshs 11,500,000, paid the 25% deposit immediately and completed the balance to the Chargee, was registered as proprietor and issued a Certificate of Title on 28th August 2015, and obtained consent to subdivide. In October and November 2016, when he and his agents attempted to access and subdivide the land, they were confronted and attacked by goons led by the 3rd Defendant; reports to Tuala Police Post went unheeded. The Defendants were duly served but neither entered appearance nor filed defences, and interlocutory judgment was entered on 3rd October 2017; the suit proceeded for formal proof hearing. The court framed two issues: whether a mandatory injunction should issue, and who should bear costs. Relying on sections 24, 25 and 26 of the Land Registration Act and the doctrine of indefeasibility of title, the court found the Plaintiff had adhered to proper legal process, held absolute and indefeasible title, and that the Defendants, who never controverted his averments, were trespassing. Judgment was entered for the Plaintiff on a balance of probability: a mandatory injunction issued restraining the Defendants, their agents, servants, employees or anyone claiming under them from trespassing on or interfering with the suit property, and costs of the suit were awarded to the Plaintiff.

Key legal issues

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01

Whether the Plaintiff, as registered proprietor, was entitled to a mandatory injunction against the Defendants' trespass

Holding

The court held that the Plaintiff acquired the suit land through proper legal process at a public auction, was registered as absolute proprietor, and the Defendants never controverted his averments; a mandatory injunction should issue restraining them from trespassing and interfering with the land.

Reasoning

The court found the Plaintiff proved he purchased the land at a public auction for Kshs 11,500,000, paid in full, was registered as proprietor and issued a Certificate of Title on 28th August 2015. Relying on sections 24, 25 and 26 of the Land Registration Act and the indefeasibility of title doctrine, the court held his title was prima facie and absolute. The Defendants, having filed no defence, never controverted his averments, and there was no indication they owned the land at the point of the auction.

p. 2
02

Who should bear the costs of the suit

Holding

Costs were awarded to the Plaintiff, who had been inconvenienced by the Defendants' acts of restraining him from accessing the suit land.

Reasoning

The court found that the Plaintiff had been inconvenienced by the Defendants' acts of blocking him from accessing the suit land and, having succeeded in his claim, held he was entitled to costs of the suit.

p. 2

Legal principles established

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  • A registered proprietor's certificate of title is prima facie evidence of absolute and indefeasible ownership, subject to challenge only on grounds of fraud, misrepresentation, or illegal/unprocedural/corrupt acquisition
  • A plaintiff who proves ownership of land on a balance of probability and whose averments are uncontroverted is entitled to a mandatory injunction against trespassers

Court orders

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  1. 1.A Mandatory injunction be and is hereby issued restraining the Defendants, their agents, servants and employee or anyone claiming under them from trespassing and/or interfering in any way with the property known as LR KAJIADO/ KITENGELA/ 27302 situate at Kitengela, Kajiado County
  2. 2.The Costs of the suit is awarded to the Plaintiff

Authorities

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Legislation

  • Land Registration Actsection 26(1)
  • Land Registration Actsection 24(a)
  • Land Registration Actsections 24, 25 and 26

Cases cited (2)

  • David Peterson Kiengo & 2 Others Vs Kariuki Thuo
    [2012] eKLR; Machakos HCCC No. 180 of 2011
  • WILLY KIPSONGOK MOROGO v ALBERT K. MOROGO
    (2017) eKLR
Jurisdiction invoked
Environment and Land Court jurisdiction over disputes relating to land (unspecified provision in the judgment)

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, "Isaac Gathungu Wanjohi v Moses Kiruti Lempaso, Grace Waithira & Nixon Kiruti (Environment & Land Case 687 of 2017) [2021] KEELC 4393 (KLR)", Case Analysis (2021). ELC Case No 687 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4393/eng@2021-02-08

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