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ELCDismissedNotice of Motion dated 18th October, 2019 in the principal suit (Machakos ELC)· [2021] KEELC 4453 (KLR)

Ali Abdi Ali (Chairman suing on behalf of Kaloleni Welfare Society) v Rhine Forwarders Ltd & another [2021] KEELC 4453 (KLR)

Environment and Land Court
29 January 2021
OAO.A. Angote
3,203 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to protect a society's land claim because a rival's earlier registered title remained valid and unchallenged.

What this practically means

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Executive summary

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The Plaintiff, chairman of Kaloleni Welfare Society, moved the court by Notice of Motion dated 18th October 2019 seeking a temporary injunction restraining the Defendants from entering, selling, constructing on or otherwise interfering with Plot L.R. No. 31990 (formerly Uns. Agricultural Plot No. 'D'-Athi River) pending trial, plus compliance orders against police officers. The Plaintiff relied on a 1997 Letter of Allotment, a Deed Plan and a Certificate of Title issued in October 2018, and alleged trespass and threats by the 1st Defendant's agents. The 1st Defendant raised a preliminary objection that the Society does not exist, asserting that its registration number belongs to a different society, and maintained it is the registered proprietor of L.R. No. 24625, part of the same land, registered in 2003 and transferred in 2004, and in occupation with permanent structures. The 1st Defendant produced a letter from the Director of Surveys recalling the Plaintiff's Deed Plan No. 424486 because it overlapped prior surveys including L.R. Nos. 24625-24636. The court found the Society's existence could only be resolved at trial given conflicting official letters. Applying the Giella and Nguruman principles, the court held the Plaintiff had no prima facie case: the 1st Defendant's title under Section 23 of the Registration of Titles Act was absolute and indefeasible, unchallenged by any plea of fraud, and being first in time it prevailed over the later, doubtful Plaintiff title. The application was dismissed with costs to the 1st Defendant.

Key legal issues

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01

Existence and capacity of the Plaintiff's Society

Holding

Conflicting official letters on the Society's registration render the question incapable of summary determination; it must be decided at the hearing

Reasoning

The Registrar of Societies' letter of 20th November 2019 stated the Society was not in the database and its certificate number belonged to a different society, but a Senior State Counsel's letter of 24th February 2020 confirmed registration. Given this conflict of official records, the court could not resolve capacity at the interlocutory stage and deferred it to trial.

p. 3
02

Whether the Plaintiff established a prima facie case for injunction

Holding

The Plaintiff did not; the 1st Defendant holds the earlier, indefeasible title and is in possession

Reasoning

Applying Giella and Nguruman, the court found the 1st Defendant's 2004 title under the Registration of Titles Act absolute and indefeasible, with no fraud pleaded against it. The Director of Surveys had recalled the Plaintiff's Deed Plan for overlapping prior surveys, yet the Chief Land Registrar registered L.R. 31990 anyway. The first-registered title takes priority, so the Plaintiff's application failed.

p. 4

Legal principles established

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  • A certificate of title issued under Section 23 of the Registration of Titles Act (repealed) is conclusive evidence of absolute and indefeasible ownership, rebuttable only by proof of fraud or misrepresentation to which the proprietor is a party
  • Where the Commissioner of Lands issues two titles over the same parcel by mistake, the first in time prevails absent cancellation of the original title

Court orders

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  1. 1.The Plaintiff's Notice of Motion dated 18th October, 2019 seeking a temporary injunction is dismissed
  2. 2.Costs of the application awarded to the 1st Defendant

Authorities

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Legislation

  • Registration of Titles Act (repealed)Section 23
  • Societies Actnull
  • Societies Rules1968

Cases cited (6)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) EA 358
  • Fellowes and Son vs. Fisher
    [1976] I QB 122
  • Nguruman Limited vs. Jan Bonde Nielsen & 2 others
    [2014] eKLR
  • Mrao vs. First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125
  • Caroget Investment Limited vs. Aster Holdings Limited & 4 others
    [2019] eKLR
  • Gitwany Investment Limited vs. Tajmal Limited and 3 others
    [2006] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (interlocutory application in a land suit)

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, "Ali Abdi Ali (Chairman suing on behalf of Kaloleni Welfare Society) v Rhine Forwarders Ltd & another [2021] KEELC 4453 (KLR)", Case Analysis (2021). Notice of Motion dated 18th October, 2019 in the principal suit (Machakos ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4453/eng@2021-01-29

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