Mureithi & another (Suing as administrators of the Estate of Evanson Mureithi Kiboi) & another v Maina & 4 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the applicants established a prima facie case with a probability of success
No prima facie case established; the 3rd and 4th defendants are registered proprietors and no evidence of fraud against them was adduced
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.
Whether the applicants would suffer irreparable harm not compensable by damages, and where the balance of convenience lies
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
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
#- 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
#- 1.The Notice of Motion dated 14th December 2022 is dismissed
- 2.Costs to abide the outcome of the main suit
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.