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ELCPartially AllowedNot stated in judgment· [2022] KEELC 2031 (KLR)

George Kimani Kariuki v David Waititu Kimani & 2 others [2022] KEELC 2031 (KLR)

Environment and Land Court
17 January 2022
BEB M Eboso
1,717 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court froze five disputed plots instead of granting an injunction, because the owner had never reported the alleged fraud to police.

What this practically means

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Executive summary

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The plaintiff sued the three defendants seeking declarations that he is the bona fide owner of parcels Escarpment Jet Scheme/1931, 1932, 1933, 1934 and 1937 in Lari Sub County, Kiambu County, that their transfer was fraudulent, a permanent injunction, and cancellation of any titles issued over them. Together with the plaint he filed a notice of motion dated 15/9/2020 seeking temporary injunctions restraining the defendants from interfering with or dealing in the suit properties. He deposed that the original titles were missing, that parcels 1934 and 1937 had been registered in the names of the 1st and 2nd defendants and that parcels 1931, 1932 and 1933 had been used as collateral for loans to Hannah Njeri Kimani by Silverstorm Ventures, all without his involvement. The 1st and 2nd defendants, through a replying affidavit of David Kimani Waititu, asserted that the plaintiff himself sold and transferred parcels 1931, 1934 and 1937 to them with due diligence, sale agreements, payment of the purchase price and Land Control Board consents. The 3rd defendant did not respond. Applying the Giella v Cassman Brown criteria, B M Eboso J observed that the plaintiff had not reported the alleged fraud to the Criminal Investigation Directorate. The court concluded that the application was best disposed of on the balance of convenience and ordered preservation of all five parcels by barring any registrations in the parcel registers pending trial. The plaintiff was directed to amend the plaint within 14 days and join Hannah Njeri Kimani and Silverstorm Ventures as defendants, the CID was left free to investigate any report of fraud, and costs of the application were reserved to the cause.

Key legal issues

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01

Whether the plaintiff was entitled to an interlocutory injunction

Holding

The court found the criteria in Giella not clearly satisfied and instead preserved the suit properties pending trial on the balance of convenience, and directed joinder of the third parties involved in the alleged transactions

Reasoning

The plaintiff claimed to be the registered proprietor and denied selling or transferring the parcels; the defendants asserted a bona fide purchase supported by sale agreements, Land Control Board consents and payment. The court noted the plaintiff had not reported the alleged fraud to the police and found the application best disposed of on the balance of convenience, requiring preservation of the properties pending full trial.

p. 2

Legal principles established

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  • Interlocutory injunctions are governed by the Giella v Cassman Brown criteria: prima facie case, irreparable injury not compensable by damages, and balance of convenience if in doubt
  • Allegations of land fraud should be reported to law enforcement agencies so they can investigate

Court orders

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  1. 1.Pending the hearing and final determination of this suit, no dealings shall be registered in the parcel registers relating to Escarpment Jet Scheme/1931; 1932; 1933; 1934 and 1937
  2. 2.The plaintiff shall within 14 days amend the plaint and join Hannah Njeri Kimani together with Silverstorm Ventures (or the proprietors of Silverstorm Ventures, as the law may require) as defendants in this suit
  3. 3.The Criminal Investigation Directorate shall be at liberty to independently investigate any report made to them regarding the alleged fraud relating to the five titles and take appropriate steps thereon as they may deem necessary
  4. 4.Costs of the application shall be in the cause

Authorities

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Cases cited (1)

  • Giella v Cassman Brown & Co. Ltd
    (1975) EA 358
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over land disputes (not expressly stated in the judgment)

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, "George Kimani Kariuki v David Waititu Kimani & 2 others [2022] KEELC 2031 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2031/eng@2022-01-17

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