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ELCPartially AllowedEnvironment & Land Case 750A of 2017· [2022] KEELC 15484 (KLR)

Wabururu v Kagia & 2 others

Environment and Land Court
20 December 2022
JKJ G Kemei
2,074 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court froze all dealings with disputed land using an inhibition order, protecting a buyer's claim until the ownership dispute is fully tried.

What this practically means

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Executive summary

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This is a ruling by J G Kemei, J of the Environment and Land Court at Thika on a Notice of Motion dated September 26, 2017 by the Plaintiff, James Njau Wabururu, administrator of the estate of the late Francis Wabururu Njau. The Plaintiff sought an order of inhibition and an interlocutory injunction over Title No Karai/Karai/1373 pending the hearing of the suit, contending his late father bought 12 acres out of Karai/Karai/340 in 1970, took possession, and that the suit land was fraudulently registered in the name of the 1st Defendant's father, Bernard Kagia Njuguna, transferred in disregard of an injunction in Nbi HCCC 751 of 2003 to the 1st Defendant, and later to the 2nd Defendant who cut down gum trees on the land. The Defendants opposed, asserting the 2nd Defendant is the duly registered proprietor after due diligence, that the Plaintiff's father owned Karai/Karai/1372, and that the suit is res judicata given prior suits HCCC 751/2003, 715/2003 and 338/2008. The Court declined to revisit res judicata, having ruled on November 2, 2018 that the suit is not res judicata but was sub judice on account of Nbi Case 751/2003 which has since abated. Finding that ownership of the suit land has never been conclusively determined on merits, and relying on the nature of inhibition orders under Section 68 of the Land Registration Act, the Court granted Prayer (c) only - an inhibition over the suit land to last the pendency and determination of the suit - and ordered costs to be in the cause.

Key legal issues

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01

Res judicata

Holding

The Court had already ruled on November 2, 2018 that the suit is not res judicata but sub judice on account of Nbi Case 751/2003 which has since abated, and would not revisit the plea

Reasoning

The plea had been raised in a Preliminary Objection dated October 24, 2017 and determined in a Ruling dated November 2, 2018. Having pronounced itself, the Court declined to revisit the plea again.

p. 3
02

Whether an order of inhibition should issue pending trial

Holding

Yes - ownership of the suit land has never been conclusively determined on merits, and an inhibition preserves the substratum of the case pending trial

Reasoning

The Court's power to grant an inhibition is discretionary. Rival claims to ownership remain unresolved following the abatement of the Milimani case. The validity of the 2nd Defendant's title is a matter for trial upon production of evidence, so interim preservation was warranted.

p. 4

Legal principles established

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  • An order of inhibition under Section 68 of the Land Registration Act is similar to a prohibitory injunction and preserves the property in dispute pending trial
  • A certificate of title under Section 26 of the Land Registration Act is conclusive proof of ownership unless impeached on the grounds set thereunder

Court orders

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  1. 1.An order of inhibition is granted against Title No Karai/Karai/1373 to last the pendency and determination of this suit
  2. 2.Costs be in the cause
Jurisdiction invoked
Environment and Land Court jurisdiction; Section 68 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, "Wabururu v Kagia & 2 others", Case Analysis (2022). Environment & Land Case 750A of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15484/eng@2022-12-20

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