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ELCAllowedNot stated in the judgment (Notice of Motion dated 24th September, 2021)· [2022] KEELC 1988 (KLR)

Rose Njeri Ndegwa v Samuel Sobi J Misingu; George Muchiri King’ori & 2 others (Intended Interested Parties) [2022] KEELC 1988 (KLR)

Environment and Land Court
27 January 2022
1,022 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked a landowner from selling disputed land mid-appeal after he defied earlier court orders, showing courts will protect property until appeals are decided.

What this practically means

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Executive summary

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By a Notice of Motion dated 24th September 2021, Rose Njeri Ndegwa, the Appellant in an appeal pending before the Environment and Land Court at Nyeri, sought an inhibition against Title No. Laikipia/Supuko Block 2/1982 (Wiumiririe) pending the hearing of the appeal, and leave to amend her Memorandum of Appeal to enjoin three Intended Interested Parties to whom, she alleged, the Respondent Samuel Sobi J Misingu had transferred the suit land while conservatory orders were in place. The application was supported by an affidavit of her counsel, Eunice Wamucii Ndegwa. The Respondent opposed it, averring that the decree from the lower court had been fully executed, that the land was registered in his name, that no court order restricted his proprietary rights, and that any change in ownership did not affect the appeal. Justice J. O. Olola, applying Section 68(1) of the Land Registration Act, held that an inhibition is akin to a prohibitory injunction granted to preserve property pending trial. The court noted the Respondent did not deny transferring the property on 19th July 2021, despite status quo orders issued on 17th December 2019 by Justice M.C Oundo preserving the suit land until determination of the appeal. Finding the transfer was an attempt to change the state of the suit land, the court found merit in the motion and allowed it in terms of prayers 2 and 3: an inhibition was registered over the suit property and leave granted to amend the Memorandum of Appeal to include the Intended Interested Parties. The Respondent was ordered to bear the costs of the application. Ruling dated 27th January 2022 at Nyeri.

Key legal issues

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01

Whether an inhibition should issue over the suit property pending appeal

Holding

The application for inhibition was merited because the Respondent transferred the suit property during the pendency of the appeal despite status quo orders made on 17th December 2019 by Justice M.C Oundo.

Reasoning

The court traced the statutory basis of inhibition to Section 68(1) of the Land Registration Act and equated it to a prohibitory injunction aimed at preserving property pending trial. The Respondent did not deny transferring the land to the Intended Interested Parties on 19th July 2021, in disregard of subsisting status quo orders preserving the suit land until determination of the appeal. The court held the transfer was an attempt to change the situation of the suit land and that the Appellant had valid grounds for the motion, allowing prayers 2 and 3.

p. 2
02

Whether the Intended Interested Parties should be enjoined by amendment of the Memorandum of Appeal

Holding

Leave to amend was granted on the basis of natural justice, since parties affected by the court's orders ought to be joined, and the transfer to them was established on the evidence.

Reasoning

The Appellant sought to enjoin the transferees of the suit property as Interested Parties, invoking rules of natural justice that anyone who might be affected by the court's orders be heard. The Respondent argued changes in ownership did not affect the appeal. The court, having found the transfer occurred while conservatory orders were in place, found merit in the application and allowed it in terms of prayer 3, permitting amendment of the Memorandum of Appeal in terms of the draft annexed.

p. 1

Legal principles established

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  • An order of inhibition under Section 68(1) of the Land Registration Act is similar in nature to a prohibitory injunction and is granted only where there is need to preserve the property pending trial.

Court orders

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  1. 1.An inhibition is registered against Title No. Laikipia/Supuko Block 2/1982 (Wiumiririe) pending the hearing and determination of the appeal
  2. 2.Leave granted to the Appellant to further amend her Memorandum of Appeal to include the three Intended Interested Parties in terms of the draft Memorandum of Appeal annexed to the application
  3. 3.The Respondent to bear the costs of the application

Authorities

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Legislation

  • Land Registration ActSection 68(1)
On appeal from
Lower court (magistrates' court)
null
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the lower court; motion brought under Section 68(1) of the Land Registration 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, "Rose Njeri Ndegwa v Samuel Sobi J Misingu; George Muchiri King’ori & 2 others (Intended Interested Parties) [2022] KEELC 1988 (KLR)", Case Analysis (2022). Not stated in the judgment (Notice of Motion dated 24th September, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1988/eng@2022-01-27

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