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ELCDismissedNot stated in the excerpt (Meru ELC application dated 16.9.2021, filed 20.9.2021)· [2022] KEELC 377 (KLR)

Stephen Kiriinya v Attorney General & 5 others [2022] KEELC 377 (KLR)

Environment and Land Court
23 March 2022
CNC.K. Nzili
1,180 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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By a notice of motion dated 16.9.2021 and filed on 20.9.2021, the plaintiff, the legal representative of the estate of Zipporah Kanono, sought an inhibition over L.R Nos. Ruiri/Rwarera 15 and 5289 and a mandatory order compelling the 2nd, 3rd and 4th defendants to cancel the subdivision of the original parcel and revert 25½ acres. He alleged that land allocated to M'Mungania M'Marete in 1970 and transferred to Zipporah Kanono in 1996 had been fraudulently subdivided and transferred to strangers, that a Minister's letter of 1996 directing reversion was never implemented, and that his objections were maliciously blocked. The court reiterated that an inhibition under Section 68(1) of the Land Registration Act is in the nature of a prohibitory injunction and requires a prima facie case, irreparable harm and balance of convenience. It found no evidence that the adjudication register was complete or that the parcels were registered under the Act, so any inhibition would rest on speculation. On the mandatory injunction, applying Kenya Breweries v Okeya and Mrao v First American Bank, the court held the applicant had not demonstrated an infringed right or exceptional circumstances; the 1996 complaint had been answered with advice to lodge an objection, delay was unexplained, and the matter required viva voce evidence. The application was dismissed with costs, with directions for service of the amended plaint within 30 days and filing of defences within 45 days.

Key legal issues

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01

Whether the conditions for an inhibition order under Section 68(1) LRA were met

Holding

No - there was no evidence the adjudication register was complete or that the parcels were registered under the Land Registration Act, so the court could not grant the inhibition

Reasoning

The applicant averred the adjudication was complete and titles about to issue, but produced no letter showing the register was closed or transmitted for issuance of titles. Nor was there a search showing the parcels had moved to the Land Registration Act register or that the 5th and 6th defendants were registered owners. Absent that proof, an inhibition would rest on speculation and would serve no purpose.

p. 2
02

Whether a mandatory injunction should issue to cancel the subdivisions and revert the land

Holding

No - the plaintiff failed to demonstrate a prima facie case or exceptional circumstances; the dispute requires viva voce evidence

Reasoning

Other than the Minister's letter of 28.5.1996 and the 2nd defendant's letter of 1.7.1996 advising an A/R objection, the applicant produced no record that his rights were recorded or recognized under the Land Consolidation Act or Land Adjudication Act, nor that the 5th and 6th respondents were recorded as owners. No infringed right was demonstrated, and delay since 1996 was unexplained. Mandatory orders were unsafe on unclear facts.

p. 2

Legal principles established

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  • An inhibition order under Section 68(1) of the Land Registration Act is in the nature of a prohibitory injunction and requires a prima facie case with probability of success, irreparable damage, and the balance of convenience
  • A mandatory injunction can only be granted in exceptional and special circumstances and in a clear case
  • A prima facie case requires demonstration of a right infringed by the other party calling for rebuttal

Court orders

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  1. 1.The application dated 16.9.2021 filed on 20.9.2021 is dismissed with costs
  2. 2.The plaintiff to serve the amended plaint on all parties within 30 days from the date of the order
  3. 3.The 1st, 2nd and 3rd defendants to file any defence within 45 days from the date of the order

Authorities

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Legislation

  • Land Registration ActSection 68(1)
  • Land Consolidation Actnot specified
  • Land Adjudication ActCap 283 and 284 respectively

Cases cited (5)

  • Samuel Njeru Daniel –vs– James Njeru Nthiga & 2 Others
    [2017] eKLR
  • Wambui Njambura –vs– John Waweru Wamai
    [2019] eKLR
  • Kenya Breweries Ltd. & Another –vs– Washington O. Okeya
    [2002] eKLR
  • Mrao Ltd –vs– First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Nation Media Group & 2 Others –vs– John Harun Mwau
    [2014] eKLR
Jurisdiction invoked
Section 68(1) of the Land Registration Act (inhibition jurisdiction); suit on land registered/adjudication land

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, "Stephen Kiriinya v Attorney General & 5 others [2022] KEELC 377 (KLR)", Case Analysis (2022). Not stated in the excerpt (Meru ELC application dated 16.9.2021, filed 20.9.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/377/eng@2022-03-23

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