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ELCDismissedPetition No. 2 of 2019· [2022] KEELC 1931 (KLR)

Samuel Muturi Muugu & 189 others v County Government of Kirinyaga & 4 others [2022] KEELC 1931 (KLR)

Environment and Land Court
21 January 2022
ECE.C. Cherono
1,863 words in judgment
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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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This is a ruling of the Environment and Land Court at Kerugoya (E.C. Cherono, ELC Judge) delivered on 21st January 2022 in Petition No. 2 of 2019, concerning land parcels in Mwea/Mutithi Scheme, Kirinyaga. The Petitioners, through a Notice of Motion dated 21st October 2021 supported by an affidavit of Samuel Muturi Muugu, sought a temporary injunction against intended interested parties to preserve the status quo, inhibition orders directing the Land Registrar Kirinyaga, the County Government of Kirinyaga and the National Land Commission to cease further registrations, transfers or disposals of the petitioned land, leave to file current certified search certificates, and leave to join nine individuals as defendants on allegations of recent transfers, subdivisions and cultivation of the suit parcels. The application was unopposed. The court held that even an unopposed application must be supported to the required evidential standard. Applying the Giella v Cassman Brown principles, it found that the suit lands are registered in the names of the intended interested parties, whose certificates of title are prima facie evidence of absolute and indefeasible ownership challengeable only under Section 26 of the Land Registration Act; until fraud is proved, no prima facie case with probability of success exists. Irreparable injury not compensable by damages was not demonstrated, and the balance of convenience tilted against the grant. The Motion was dismissed in its entirety with no order as to costs, the application having been unopposed.

Key legal issues

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01

Whether the Applicants met the Giella test for temporary injunction

Holding

They did not: no prima facie case, no irreparable injury not compensable by damages, and the balance of convenience favours refusing the orders

Reasoning

The suit properties are registered in the names of the intended interested parties. Until fraud is proved against registered proprietors, their titles are prima facie indefeasible under Section 26 of the Land Registration Act. Without proof of fraud, no prima facie case with probability of success exists; nor was irreparable injury demonstrated, and the balance of convenience lies against the grant.

02

Whether the intended interested parties should be joined as defendants

Holding

Joinder was necessary before prejudicial orders could issue against them, but the application for joinder was dismissed with the Motion

Reasoning

The court noted that the orders sought, if granted, would operate against persons not yet party to the petition, condemning them unheard. Although joinder would ordinarily be proper to bind them, the applicants failed to justify the restraining and inhibition orders, and the whole application was found devoid of merit.

p. 4

Legal principles established

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  • An unopposed application must still be supported by proof to the required standard
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds under Section 26 of the Land Registration Act

Court orders

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  1. 1.The Notice of Motion dated 21st October 2021 is dismissed for lack of merit
  2. 2.No order as to costs, the application having been unopposed

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1A and 1B
  • Civil Procedure RulesOrder 2 Rule 5
  • Civil Procedure ActSections 1A, 1B and 3A
  • Land ActSection 68
  • Land Registration Act, No. 3 of 2012Section 26

Cases cited (1)

  • Giella Vs Cassman Brown Company
    (1973) E.A 358
Jurisdiction invoked
Orders sought under Order 40 Rules 1A and 1B, Order 2 Rule 5 of the Civil Procedure Rules, Sections 1A, 1B and 3A of the Civil Procedure Act and Section 68 of the Land Act

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, "Samuel Muturi Muugu & 189 others v County Government of Kirinyaga & 4 others [2022] KEELC 1931 (KLR)", Case Analysis (2022). Petition No. 2 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1931/eng@2022-01-21

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