Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 1st July, 2020· [2021] KEELC 4645 (KLR)

Simon Waiharo Chege & Margaret Njambi Chege v Land Registrar, Ngong [2021] KEELC 4645 (KLR)

Environment and Land Court
20 January 2021
COChristine Ochieng
1,583 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

#

The Environment and Land Court in Kajiado refused to order the Land Registrar to lift a restriction on the buyers' land, saying unresolved disputes needed a full hearing.

What this practically means

#

Executive summary

#
The Plaintiffs moved the Environment and Land Court at Kajiado by Notice of Motion dated 1st July 2020, under section 78(2) of the Land Registration Act, sections 3A and 63(e) of the Civil Procedure Act and Order 51 Rule 1 of the Civil Procedure Rules, seeking a mandatory injunction compelling the Defendant Registrar to lift a restriction registered on 11th March 2018 over parcels KAJIADO/NTASHART/678 and 679. Dr. Simon Waiharo Chege deponed that he and his wife purchased the parcels from Pingwa Ole Rosio in 1988 at Kshs. 325,000, were issued title deeds, and have possessed the land since; they discovered the restriction only on a search in July 2019, registered on the application of Sagana Biriq & Company Advocates on account of the original title still held by the vendor. The Defendant opposed through Grounds of Opposition. The court framed a single issue: whether a mandatory injunction should issue directing the Defendant to lift the restriction. Associating itself with Kenya Breweries Ltd v Washington Okeyo on the parameters for interlocutory mandatory injunctions, the court held that no special circumstances existed: the Plaintiffs had not enjoined Pingwa Ole Rosio to explain the restriction and his retention of the original mother title, nor was it clear why KETRACO compensated him for the wayleave. Viva voce evidence was required. The application was dismissed with costs in the cause.

Key legal issues

#
01

Whether a mandatory injunction should issue to lift the restriction registered on the suit properties

Holding

The application was declined; the court found no special circumstances to justify a mandatory injunction at the interlocutory stage

Reasoning

The court noted the Plaintiffs did not enjoin Pingwa Ole Rosio, who sold them the land yet allegedly sought the restriction and still held the original mother title certificate. It was also unclear why KETRACO compensated him for the wayleave. These pertinent issues could not be resolved without viva voce evidence, so the interlocutory mandatory injunction could not issue.

p. 2

Legal principles established

#
  • A mandatory injunction may be granted on an interlocutory application only in special circumstances or where the case is clear and can be decided at once

Court orders

#
  1. 1.The application dated the 1st July, 2020 is dismissed as unmerited
  2. 2.Costs will be in the cause
Jurisdiction invoked
Section 78(2) of the Land Registration Act, Sections 3A and 63(e) of the Civil Procedure Act and Order 51 Rule (1) of the Civil Procedure Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Simon Waiharo Chege & Margaret Njambi Chege v Land Registrar, Ngong [2021] KEELC 4645 (KLR)", Case Analysis (2021). Notice of Motion dated 1st July, 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4645/eng@2021-01-20

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