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ELCDismissedELC Case (Machakos) - Notice of Motion dated 20th August 2020· [2022] KEELC 817 (KLR)

Peter Kilonzo & another v Stavroula Rousalis & 4 others [2022] KEELC 817 (KLR)

Environment and Land Court
16 March 2022
ANA. Nyukuri
2,314 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 stop a land sale because the family challenging the ownership waited 27 years and had no proof of fraud.

What this practically means

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Executive summary

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The Plaintiffs, as administrators of the estate of John Kyenze Kilonzo (deceased 25th January 2001), moved the court by Notice of Motion dated 20th August 2020 seeking a temporary injunction to restrain the 2nd, 3rd and 4th Defendants from selling, alienating, transferring or interfering with LR No. 12715/722 near Athi River pending the hearing of the suit. They alleged that the deceased purchased the property, deposited the title with the 3rd Defendant (his advocate) for safe custody, and that the property was fraudulently transferred to the 1st Defendant in 1993 and later to the 2nd Defendant without the deceased's knowledge or consent. The 3rd Defendant swore he acted on instructions in lawful conveyancing transactions; the 2nd and 3rd Defendants argued the transfers were valid, that the 2nd Defendant was an innocent purchaser for value with indefeasible title since 1995, that the claim was time-barred under Section 7 of the Limitation of Actions Act, and that the Plaintiffs lacked locus standi. The court framed a single issue: whether the Applicants met the threshold for a temporary injunction under Order 40 Rule 1 and Giella v Cassman Brown. It found no prima facie case: the alleged custody of the title was unproved, the deceased never complained of the 1993 transfer in his remaining eight years, and the estate waited 27 years to claim. No irreparable loss was shown and the balance of convenience favoured refusal given the 2nd Defendant's registered ownership since 1995. The application was dismissed with costs on 16th March 2022.

Key legal issues

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01

Whether the Applicants established a prima facie case with a likelihood of success

Holding

No prima facie case established; the allegation that the title was deposited with the 3rd Defendant for lawful custody was not proved, and the deceased never complained of the 1993 transfer during his 8 remaining years of life

Reasoning

The court noted the deceased died on 25th January 2001, eight years after the transfer to the 1st Defendant, and never raised a claim. The claim that the title was in the advocate's custody was unsupported, and the 27-year delay in asserting the claim undermined the Applicants' case.

p. 3
02

Whether irreparable loss and balance of convenience favoured the Applicants

Holding

Neither was established; the 2nd Defendant has been registered proprietor since 1995 and the balance of convenience favoured refusing the injunction

Reasoning

Having failed on the prima facie case limb, the Applicants equally failed to show irreparable injury not compensable in damages. The court held that given the 2nd Defendant's registered ownership since 1995, the balance of convenience lay in rejecting the injunction rather than fettering the property.

p. 3

Legal principles established

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  • An injunction can only issue against a registered proprietor if there is prima facie evidence challenging the title; a title is not subject to challenge unless acquired fraudulently, illegally or unprocedurally
  • The Giella v Cassman Brown conditions govern the grant of temporary injunctions

Court orders

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  1. 1.The Plaintiffs/Applicants' Notice of Motion dated 20th August 2020 is dismissed
  2. 2.Costs of the application awarded to the Defendants/Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1
  • Government Lands Act (repealed)Section 18
  • Registration of Titles Act Cap 281 (repealed)Section 34
  • Law of Succession ActSection 54
  • Limitation of Actions ActSection 7

Cases cited (12)

  • Giella vs Cassman Brown & Co. Ltd
    [1973] E.A 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Joel Kipkirui Arap Koech vs Alice Wambui Magandu & 3 Others
    [2018] eKLR
  • Central Bank of Kenya & Another vs Uhuru Highway Development Bank Ltd & 4 Others
    [2000] eKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    [2018] eKLR
  • Aikman vs Muchoki
    [1984] KLR 353
  • Joseph Mbugua Gichanga vs Cooperative Bank of Kenya Ltd
    [2005] eKLR
  • Daniel Mbithi Mathiu vs Consolidated Bank of Kenya Limited & Another
    [2012] eKLR
  • Samson Ndambo Ngugi vs Anthony Muchina Kamau & Another
    [2021] eKLR
  • Paul Gitonga Wanjau vs Gathuthi Tea Factory Company Ltd & 2 Others
    [2016] eKLR
  • Re the matter of the Estate of Morarji Bhanji Dhanak (deceased)
    [2000] eKLR
  • Virginia Wangari Ndindi vs Ann Ngima Mari & Another
    [2017] eKLR
Jurisdiction invoked
Order 40 Rule 1 of the Civil Procedure Rules (interim injunctive relief in a pending 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, "Peter Kilonzo & another v Stavroula Rousalis & 4 others [2022] KEELC 817 (KLR)", Case Analysis (2022). ELC Case (Machakos) - Notice of Motion dated 20th August 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/817/eng@2022-03-16

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