Muturi & 2 others v Morjaria & 2 others
The bottom line
#A Kenyan court halted construction on disputed land, ruling that building on property whose title is under challenge risks greater injustice than pausing work.
What this practically means
#Executive summary
#Key legal issues
#Whether the 3rd Defendant established a prima facie case with a probability of success
Yes - the Applicant contests the title held by the 3rd Plaintiff, which title the National Land Commission directed to be revoked, and there is a counter-claim on record challenging the Plaintiffs' title
The court noted the Applicant's counter-claim against the Plaintiffs/Respondents and the submission that the National Land Commission had found the title issued to the 1st and 2nd Plaintiffs was to be revoked, meaning no good title could pass to the 3rd Plaintiff, on whose impugned title the construction proceeded.
Whether the Applicant would suffer irreparable injury not compensable in damages
The court accepted the Applicant's apprehension that the suit property might be disposed of or dealt with as set out in the application if orders were not granted
Relying on the definition of irreparable injury in Pius Kipchirchir Kogo v Frank Kimeli Tenai, the court found that if the orders sought were not granted, the suit property might be dealt with in the manner apprehended by the Applicant, since both parties claim ownership of the property.
Whether the balance of convenience tilts in favour of the Applicant
Yes - the lower risk of injustice lies in granting the temporary injunction and maintaining the status quo pending determination of the suit
The 3rd Plaintiff did not deny ongoing construction works on the suit property, and there is a counter-claim challenging the Plaintiffs' title. Applying Amir Suleiman v Amboseli Resort Limited, the court opted for the lower rather than the higher risk of injustice, holding that the titleholder's right to deal with the property is subject to lis pendens.
Legal principles established
#- Where both parties claim ownership and construction is ongoing on land subject to a pending suit, the lower risk of injustice lies in granting a temporary injunction preserving the status quo
- A titleholder's right to deal with registered land is restricted while the suit is pending under the doctrine of lis pendens
Court orders
#- 1.Temporary injunction restraining the Plaintiffs/Respondents, their servants, agents, assigns or anybody working under their instructions from proceeding with construction activities at the suit property known as Land Reference No. 24392 pending the hearing and determination of the main suit
- 2.Costs of the application to the 3rd Defendant/Applicant in the cause
- Jurisdiction invoked
- Original civil jurisdiction of the Environment and Land Court over disputes relating to land (LR No 24392)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muturi & 2 others v Morjaria & 2 others", Case Analysis (2023). Environment & Land Case 1553 of 2013 & Civil Suit 375 of 2018 (Consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16079/eng@2023-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.