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ELCDismissed· [2022] KEELC 3469 (KLR)

Ndirangu v Njogu & 2 others (Environment & Land Case E020 of 2021) [2022] KEELC 3469 (KLR)

Environment and Land Court
28 July 2022
LKL. Komingoi
1,423 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A land buyer who lost his share certificate and couldn't identify the plot failed to stop another party from dealing with it in court.

What this practically means

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Executive summary

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This was a Notice of Motion dated January 8, 2021 by the Plaintiff, brought under Section 3A of the Civil Procedure Act and Order 40 of the Civil Procedure Rules, seeking temporary injunctions restraining the Defendants from dealing with, alienating or encumbering Nairobi Block 105/904 (also Plot No. D.168 of Share Certificate No. 2371 of Embakasi Ranching Company Limited), restraining the 2nd and 3rd Defendants from issuing a title in the 1st Defendant's name, and seeking police-supervised enforcement. The Plaintiff claimed to be a bona fide purchaser for value from one Nduthi Muigai for Ksh. 250,000, holding share certificate No. 2371, which he lost and reported at Kiambu Police Station, and complained that titles issued in 2020 to Embakasi Ranching members were processed in the 1st Defendant's name through unprocedural means. The 1st Defendant opposed, deponing she was the registered 99-year lessee from January 1, 1988, in possession since 1990, and a shareholder since 1978, and that the Plaintiff's sale agreement was fictitious. The court canvassed the application by written submissions and framed two issues: whether the application met the threshold for a temporary injunction and costs. Applying Giella v Cassman Brown as reiterated in Nguruman and the definition of a prima facie case in Mrao Limited, the court found the Plaintiff was not in possession, had misplaced his share certificate, and could not ascertain the land, whereas the 1st Defendant held title and possession. The application was dismissed with costs abiding the outcome of the main suit.

Key legal issues

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01

Whether the Plaintiff established a prima facie case for a temporary injunction

Holding

No - the Plaintiff was not in possession, had lost his share certificate, and could not even identify the suit land, while the 1st Defendant held a title and was in possession

Reasoning

The Plaintiff's claim rested on a sale agreement with one Nduthi Muigai and a share certificate No. 2371 which he misplaced. He produced only a receipt for a site visit, showing he could not ascertain the land and its beacons, and he was not in possession. The 1st Defendant, by contrast, held a registered lease and was in possession. Applying Mrao Limited, the Plaintiff failed at the first hurdle, so the application failed.

p. 4

Legal principles established

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  • An applicant for an interlocutory injunction must sequentially satisfy the three Giella v Cassman Brown requirements: prima facie case, irreparable injury, and balance of convenience
  • A prima facie case is one in which, on the material presented, the court concludes a right has apparently been infringed so as to call for an explanation from the other party

Court orders

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  1. 1.The notice of motion dated January 8, 2021 is dismissed
  2. 2.The costs of the application shall abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 50
  • Civil Procedure RulesOrder 40
  • Land Registration Act, 2012Section 26

Cases cited (4)

  • Gitao & 5 others v Kenya National Chamber of Commerce & Another
    [1990] KLR 360
  • Giella v Cassman Brown
    [1973] EA 358
  • Nguruman Ltd v Jan Bonde Nielsen & Others
    [2014] eKLR
  • Mrao Limited v First American Bank of Kenya & 2 Others
    [2003] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act Cap 21 and Order 40 of the Civil Procedure Rules

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, "Ndirangu v Njogu & 2 others (Environment & Land Case E020 of 2021) [2022] KEELC 3469 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3469/eng@2022-07-28

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