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ELCDismissedRuling in respect of Notice of Motion Application dated 27th July 2021· [2022] KEELC 2077 (KLR)

Nicholas Njeru Muturi v Thome Dynamics Limited & another [2022] KEELC 2077 (KLR)

Environment and Land Court
20 January 2022
MMM.D. Mwangi
2,420 words in judgment
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The bottom line

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A Kenyan court refused to stop construction on disputed land because the claimant's allotment papers didn't match a registered title holder's documents.

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 Nairobi (M.D. Mwangi, J) on the Plaintiff's Notice of Motion dated 27th July 2021 seeking an interlocutory injunction restraining the Defendants from entering, constructing on or dealing with Plot No. 113 on L.R No. 209/11391, and a mandatory injunction to compel removal of structures. The Plaintiff claimed allocation of the plot by Bahati Development Company in 2001 and alleged trespass and demolition of his foundation in July 2021. The 1st Defendant, Thome Dynamics Ltd, asserted registered ownership of L.R No. 209/11391, having purchased it in 1999 from the Kenya Association of Manufacturers under a grant issued under the repealed Registration of Titles Act. The Court first disregarded the 1st Defendant's supplementary affidavit filed without leave after submissions as unprocedural and unfair. Applying the Giella v Cassman Brown principles as elaborated in Nguruman Ltd v Jan Bonde Nielsen, the Court found the Plaintiff had failed to establish a prima facie case: the City Council allotment was addressed to Bahati Development Welfare Association, not Bahati Development Company, and the 1st Defendant held registered title which under section 26 of the Land Registration Act is prima facie evidence of proprietorship. The Court did not consider the remaining Giella conditions. The application was dismissed with costs.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for an interlocutory injunction

Holding

No prima facie case established; the 1st Defendant held registered title under the RTA while the Plaintiff's allotment documents were deficient and inconsistent

Reasoning

The Plaintiff relied on an allotment from Bahati Development Company, but the exhibited City Council allotment was addressed to Bahati Development Welfare Association, an unexplained discrepancy. The 1st Defendant traced its title to the registered grantee, KAM, by purchase for value. The registered title is prima facie evidence of proprietorship under section 26 of the Land Registration Act.

p. 3
02

Whether the supplementary affidavit filed without leave should be considered

Holding

The Court disregarded the supplementary affidavit as it was filed without leave and after submissions, denying the Plaintiff a chance to respond

Reasoning

The 1st Defendant filed the affidavit through the e-filing platform without leave and long after the Plaintiff's submissions. Admitting it would deprive the Plaintiff of an opportunity to respond, which is unprocedural and unfair. The Court elected to ignore its contents in the ruling.

p. 3

Legal principles established

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  • A certificate of title issued by the Registrar is prima facie evidence of proprietorship under section 26 of the Land Registration Act
  • The three Giella conditions are sequential hurdles; failure at the first stage disposes of the application

Court orders

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  1. 1.The Plaintiff's application dated 27th July 2021 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 1(a), (b) & 2(1)
  • Civil Procedure ActSections 3A and 63(e)
  • Registration of Titles Act (repealed)
  • Land Registration ActSection 26

Cases cited (6)

  • Giella Vs Cassman Brown & Co Ltd
    (1973) E.A 358
  • MRAO VS 1ST AMERICAN BANK OF KENYA LTD & 2 OTHERS
    (2013) KLR 123
  • JOHN KHAMASI BEGISEN VS JOSEPH MUROTE WANJIKU
    ELC case No. 63 of 2014
  • SHOWIND INDUSTRIES VS GUARDIAN BANK LTD & ANOTHER
    (2002) 1 EA 284
  • NGURUMAN LTD VS JAN BONDE NIELSEN & 2 OTHERS
    (2014) eKLR
  • Embakasi Properties Ltd & another Vs Commissioner of Lands & Another
    (2019) eKLR
Jurisdiction invoked
Order 40 Rule 1(a), (b) & 2(1) of the Civil Procedure Rules, 2010 and Sections 3A and 63(e) of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (8)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nicholas Njeru Muturi v Thome Dynamics Limited & another [2022] KEELC 2077 (KLR)", Case Analysis (2022). Ruling in respect of Notice of Motion Application dated 27th July 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2077/eng@2022-01-20

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