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ELCPartially AllowedMalindi ELC Case No 105 of 2019· [2022] KEELC 3670 (KLR)

Mwamule Company Limited v Chief Land Registrar & 2 others (Environment & Land Case 105 of 2019) [2022] KEELC 3670 (KLR)

Environment and Land Court
12 May 2022
2,497 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court stopped the sale of half a Malindi property, ruling the company registered as co-owner could not be shut out by an earlier case it never took part in.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court determines two applications in Malindi ELC Case No 105 of 2019. The plaintiff, Mwamule Company Limited, sought interim injunction and inhibition orders restraining the 2nd and 3rd defendants, Fabia Campanella and Campanella Paola, from alienating, dealing with or interfering with one half undivided share of LR No 1883 (original No 424/31), and sought an inhibition under section 68 of the Land Registration Act with entries made in the land register by the Chief Land Registrar. The 2nd and 3rd defendants applied to dismiss the suit as res judicata the court's judgment of September 14, 2016 in Malindi ELC Case No 132 of 2015 (OS), an adverse possession suit they had filed against Rocchi Pompeo and Angelo Ricchi. The court found the elements of res judicata were not met: Rocchi Pompeo and Angelo Ricchi had gifted their shares to the plaintiff before the former suit, the plaintiff had been registered as co-owner, was not party to or heard in the former suit, and the issues differed. The court held the earlier judgment resulted from misrepresentation and non-disclosure, that a decree cannot be enforced against a non-party, and that undivided shares cannot be acquired by adverse possession before sub-division. Finding a prima facie case with probability of success, the court dismissed the res judicata application, allowed the plaintiff's application in terms of prayers 3, 5 and 6, and awarded the plaintiff the costs of both applications.

Key legal issues

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01

Whether the suit is res judicata the earlier Malindi ELC Case No 132 of 2015 (OS)

Holding

The suit is not res judicata: the plaintiff was not a party to the former suit, was not heard, and the issues are not the same

Reasoning

The court applied section 7 of the Civil Procedure Act and the conjunctive elements in Kenya Commercial Bank v Benjoh Amalgamated. The former adverse possession suit was brought against Rocchi Pompeo and Angelo Ricchi, who had already gifted their shares to the plaintiff and been registered as co-owner before that suit. The plaintiff neither knew of the suit nor was heard, and the substantial questions differ. The earlier judgment was a product of misrepresentation and non-disclosure.

p. 5
02

Whether the plaintiff established a prima facie case for injunction and inhibition

Holding

Yes; the plaintiff demonstrated it was the registered proprietor of half share and that the property was subsequently registered in the defendants' names without notice, warranting interim injunctive and inhibitory relief

Reasoning

The plaintiff showed registration as co-owner by indenture dated March 16, 2015 and subsequent fraudulent re-registration of the whole property to the 2nd and 3rd defendants without notice. Since title is indefeasible absent fraud or misrepresentation, and the defendants had not challenged the title on those grounds, the plaintiff showed a prima facie case with probability of success justifying the injunction and inhibition pending trial.

p. 5
03

Whether adverse possession can lie over undivided shares and against non-registered proprietors

Holding

Undivided shares cannot be subjected to adverse possession before sub-division, and adverse possession cannot be claimed against persons who were not registered proprietors when the action was brought

Reasoning

The court reasoned that the 2nd and 3rd defendants could not maintain an adverse possession claim against Rocchi Pompeo and Angelo Ricchi because those persons had already relinquished their interests and were not the registered proprietors at the material time. Further, co-owned property held in undivided shares cannot be acquired by adverse possession by one co-owner prior to sub-division.

p. 5

Legal principles established

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  • The elements of res judicata are conjunctive rather than disjunctive and must all be present before a suit is deemed res judicata
  • Registration of a proprietor is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, illegality or misrepresentation
  • A decree cannot be enforced against a party who was not party to the proceedings in which it was obtained
  • Property owned in undivided shares cannot be subjected to adverse possession by one party before sub-division

Court orders

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  1. 1.The 2nd and 3rd defendants' application dated October 15, 2020 seeking dismissal of the suit as res judicata is dismissed
  2. 2.The plaintiff's application dated November 26, 2019 is allowed in terms of prayers 3, 5 and 6 thereof
  3. 3.Prayer 3: pending hearing and determination of the suit, the 2nd and 3rd defendants are restrained from entering into any sale agreement, selling, transferring, disposing of, pledging, leasing, charging or otherwise alienating or dealing with LR No 1883 (original No 424/31) one half undivided share, from effecting any change in the state, condition, ownership and occupation of the suit property, and from interfering with the plaintiff's right to occupation and enjoyment
  4. 4.Prayer 5: an inhibition under section 68 of the Land Registration Act against all further registration or change of registration in ownership, leasing, subleasing, allotment, user, occupation or any right, title or interest in LR No 1883 (original No 424/31) pending hearing and determination of the suit, to be noted on the respective land register
  5. 5.Prayer 6: the orders bind the 2nd and 3rd defendants and the 1st defendant is directed to make the entries of the orders in the relevant land register
  6. 6.The plaintiff shall have the costs of both applications

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Land Registration Act No 2 of 2015 (Amendment) Act 1959 (as cited in the judgment)section 68

Cases cited (1)

  • Kenya Commercial Bank Limited v Benjoh Amalgamated Limited
    [2017] eKLR
Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court); the judgment itself cites section 7 of the Civil Procedure Act for the res judicata doctrine and section 68 of the Land Registration Act for the inhibition order

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, "Mwamule Company Limited v Chief Land Registrar & 2 others (Environment & Land Case 105 of 2019) [2022] KEELC 3670 (KLR)", Case Analysis (2022). Malindi ELC Case No 105 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3670/eng@2022-05-12

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