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ELCDismissedNot stated in judgment (ELC Suit at Embu)· [2022] KEELC 419 (KLR)

Ethan Njeru Kithumbu & another v Kithumbu Burachi [2022] KEELC 419 (KLR)

Environment and Land Court
8 March 2022
AKA. K. Kaniaru
2,945 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Embu Environment and Land Court dismissed two siblings' bid to block their father from selling family land, ruling they lacked evidence of a trust protecting them.

What this practically means

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Executive summary

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The applicants, children of the first house of the respondent, a polygamous registered owner of land parcel Nthawa/Siakago/1567, moved the court by notice of motion under Order 40 rules 1 and 2 of the Civil Procedure Rules seeking a temporary injunction restraining the respondent from subdividing, selling, charging, alienating or leasing the suit land, and a prohibitory order registered against the title, both pending the hearing of the main suit. They alleged the land was allocated to the respondent by the Kere clan to hold in trust for his family; that a 2012 memorandum of understanding from a family meeting provided for equal subdivision between the two houses, 30 acres each; and that the respondent had breached the understanding by further subdividing the first house's portion and selling it to third parties. The respondent denied the meeting, the memorandum and any trust, disputed the applicants' locus standi, contended the claim was time-barred, and questioned the authenticity of the signatures. Applying Giella v Cassman Brown as restated in Nguruman Limited v Jan Bonde Nielsen, the court held that the three conditions must be surmounted sequentially. Because the applicants were not title holders, alleged an unregistered trust, and filed no witness statements to indicate that a trust in their favour (not presumed for children as it is for spouses) might be inferable, no prima facie case was established and the other limbs were not considered. The court also noted the absence of an undertaking in damages and held that a prohibitory order under Order 22 rule 48 is a post-judgment execution remedy; the correct interlocutory application was for an inhibition under Section 68 of the Land Registration Act, which was not sought. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the applicants established a prima facie case

Holding

No prima facie case was established; the applicants are not title holders, no witness statements were filed to show that an unregistered trust might be inferable, and a trust in favour of children is not presumed

Reasoning

The registered owner owns land absolutely; a trust not noted on the register can only be established by cogent evidence. The applicants pleaded an unregistered trust and a memorandum of understanding, but filed no witness statements to give the court a glimpse of the evidence. Given the difficulty of defeating a registered owner's rights, the first Giella limb failed and the court did not consider the other conditions.

p. 3
02

Whether a prohibitory order could issue at the interlocutory stage

Holding

No; a prohibitory order under Order 22 rule 48 is an execution-stage attachment measure available only after judgment, and the proper interlocutory application would have been for an inhibition under Section 68 of the Land Registration Act, 2012

Reasoning

Order 22 of the Civil Procedure Rules governs execution of decrees; rule 48 provides for attachment of immovable property by way of a prohibitory order or inhibition. Since the suit has not been heard, the applicants misapprehended the law in seeking a prohibitory order before judgment; the correct remedy was an order of inhibition, which they did not seek.

p. 3

Legal principles established

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  • The Giella conditions for an interlocutory injunction must be satisfied sequentially; failure on the first limb (prima facie case) renders consideration of the others unnecessary
  • While the law easily presumes a trust in favour of a spouse, it is not axiomatic that a trust exists in favour of children; an unregistered trust requires cogent evidence
  • An undertaking to pay damages is a criterion for granting an injunction and where none has been given, an injunction cannot issue
  • A prohibitory order under Order 22 rule 48 is a post-judgment execution remedy; the interlocutory preservation remedy is an inhibition under Section 68 of the Land Registration Act

Court orders

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  1. 1.The notice of motion dated 23rd June 2021 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 rules 1 and 2
  • Civil Procedure Rules, 2010Order 40 rule 1(a) and (b)
  • Civil Procedure Rules, 2010Order 22 rule 48(1)
  • Land Registration ActSection 68

Cases cited (5)

  • Giella Vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Limited versus Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR
  • Mrao Ltd. V. First American Bank of Kenya Ltd & 2 others
    [2003] KLR 125
  • Jamin Kiombe Lidodo Vs Emily Jerono Kiombe & Another
    ELC No. 218 of 2012 [2020] eKLR
  • Gati Vs Barclays Bank (K) Ltd
    [2001] KLR 525
Jurisdiction invoked
Order 40 rules 1 and 2 of the Civil Procedure Rules, 2010 (interlocutory application in an ELC 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, "Ethan Njeru Kithumbu & another v Kithumbu Burachi [2022] KEELC 419 (KLR)", Case Analysis (2022). Not stated in judgment (ELC Suit at Embu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/419/eng@2022-03-08

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