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ELCDismissedEnvironment & Land Case 105 of 2022· [2023] KEELC 18440 (KLR)

Mureithi & another (Suing as administrators of the Estate of Evanson Mureithi Kiboi) & another v Maina & 4 others

Environment and Land Court of Kenya
29 June 2023
1,955 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 refused to freeze disputed Ngong land because the families alleging fraud produced no evidence against the registered owners.

What this practically means

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Executive summary

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This is a ruling by L. Komingoi J of the Environment and Land Court at Kajiado on a Notice of Motion dated 14th December 2022 in which the plaintiffs, administrators of the estates of Evanson Mureithi Kiboi and Stephen Kanyi Muchiri, sought an order restricting registrations and dealings on Title Number Ngong/Ngong/23839 and 49 sub-plots ensuing from its subdivision, together with a temporary injunction restraining the defendants from selling, transferring, disposing of, entering or constructing on the properties pending the hearing of the suit. The application was supported by the 1st plaintiff's affidavits and opposed by the 2nd, 3rd and 4th defendants; the 5th defendant (the District Land Registrar Ngong) filed no response. The 3rd and 4th defendants, Air Travel and Related Studies Limited and House and Homes Limited, contended they were bona fide purchasers for value without notice, registered proprietors in occupation and possession, that no fraud was particularized against them, and that the applicants had failed to transmit the estate property for over 20 years. The court framed two issues: whether the applicants met the threshold for a temporary injunction, and costs. Applying Giella v Cassman Brown and Mrao Ltd v First American Bank, and section 26(1) of the Land Registration Act, the court found the applicants failed to demonstrate a prima facie case, produced no evidence of fraud against the 3rd and 4th defendants, could not show irreparable harm compensable only by damages, and that the balance of convenience favoured the 3rd and 4th defendants, whose properties were developed and, in the 3rd defendant's case, charged to a bank not joined to the suit. The motion was dismissed with costs abiding the outcome of the main suit.

Key legal issues

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01

Whether the applicants established a prima facie case with a probability of success

Holding

No prima facie case established; the 3rd and 4th defendants are registered proprietors and no evidence of fraud against them was adduced

Reasoning

The court applied Giella v Cassman Brown and Mrao Ltd v First American Bank on the injunction threshold. Under section 26(1) of the Land Registration Act, registered titles are prima facie indefeasible. The applicants alleged fraud but placed no evidence before the court showing the 2nd, 3rd and 4th defendants were parties to the alleged fraud. Their failure to transmit the estate property for over 20 years after obtaining letters of administration in 2002 also undermined their claim.

02

Whether the applicants would suffer irreparable harm not compensable by damages, and where the balance of convenience lies

Holding

No irreparable harm demonstrated; balance of convenience tilts in favour of the 3rd and 4th defendants who are in possession and have developed the properties

Reasoning

The court found the 3rd and 4th defendants had particularized developments on the suit properties and were in occupation. The 3rd defendant's property was charged to a bank which had not been enjoined, making an injunction imprudent. Damages were considered an adequate remedy, and the applicants' long delay in acting after allegedly discovering the fraud in November 2021 weighed against them.

Legal principles established

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  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on fraud or misrepresentation to which the proprietor is a party, or where the title was acquired illegally, unprocedurally or through a corrupt scheme
  • An injunction applicant must make full and frank disclosure and show a legal or equitable right requiring protection

Court orders

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  1. 1.The Notice of Motion dated 14th December 2022 is dismissed
  2. 2.Costs to abide the outcome of the main suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2 and 4
  • Civil Procedure Actsection 3A
  • Land Registration Actsection 26(1)
  • Land Registration Actsection 80(1)
  • Evidence Actsection 120
  • Constitution of KenyaArticles 40, 48 and 159(2)

Cases cited (9)

  • Nguruman Limited Vs. Jan Bonde Nielsen & 2 others
    (2014) eKLR

    Principles for grant of temporary injunction

  • Fatuma Ali and 3 others Vs. Nelson Waruinge Kimani & others
    (2021) eKLR

    Risk of deprivation of suit property by holders of titles

  • Elizabeth Muthoni Hussein Vs. Vikesh Jinit Shah
    (2018) eKLR

    Irreparable injury not compensable by damages

  • Arthi Highway Developers Ltd vs. West End Butchery Ltd & 60 others
    (2015) eKLR

    Protection of bona fide purchasers for value without notice

  • Katende vs. Haridar & Company Ltd
    (2008) 2 E.A. 173

    Duties of a bona fide purchaser for value

  • Giella v Cassman Brown & Co Ltd
    (1973) EA 358

    Principles governing grant of temporary injunctions

  • David Peterson Kiengo & 2 others v Kariuki Thuo
    (2012) eKLR

    Injunction principles

  • Mrao Ltd Vs. First American Bank of Kenya Ltd & 2 others
    (2003) eKLR

    Definition of a prima facie case

  • Kenleb Cons. Limited Vs. New Gatitu Services Station Limited & another
    (1990) eKLR

    Full and frank disclosure and demonstration of a right requiring protection

Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; motion brought under Order 40 rules 1, 2 and 4 of the Civil Procedure Rules, section 3A of the Civil Procedure Act, section 26(1) of the Land Registration Act and Articles 40, 48 and 159(2) of the Constitution

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, "Mureithi & another (Suing as administrators of the Estate of Evanson Mureithi Kiboi) & another v Maina & 4 others", Case Analysis (2023). Environment & Land Case 105 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/18440/eng@2023-06-29

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