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ELCPartially AllowedEnvironment & Land Case E389 of 2022· [2023] KEELC 20170 (KLR)

Ngatho & another (Both Suing as Administrators of the Estate of Wanjiku Njau - Deceased) v Kigo & another

Environment and Land Court
28 September 2023
2,638 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Nairobi court blocked an eviction and froze land dealings because the family in occupation held title documents and forgery claims need a full trial.

What this practically means

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Executive summary

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The plaintiffs, administrators of the estate of Wanjiku Njau (deceased), moved the Environment and Land Court by notice of motion dated 18th November 2022 seeking temporary injunctions pending trial: against the 1st Defendant from evicting them or demolishing developments on LR.no 36/11/24, and against the 2nd Defendant (Chief Land Registrar) from registering dealings on the property without notice. The Applicants claimed the deceased purchased the property in 1981 and held a certificate of title, paid rates and utility bills, and faced an eviction notice dated 16th November 2022 from the 1st Defendant. The 1st Defendant opposed, asserting he was the registered proprietor since 1997 via an Indenture of Conveyance, alleging the Applicants' conveyance was forged. Both sides relied on Giella v Cassman Brown and Mrao v First American Bank. The court framed a single issue: whether the application met the threshold for injunctive relief. It found a prima facie case since both parties held titles but the Applicants were in possession, so forgery allegations could not be resolved interlocutorily. Possession and permanent structures made damages inadequate and required preservation of the property. The balance of convenience favoured the Applicants in possession, noting the 1st Defendant could not evict without a court order. The court allowed the application, issuing both injunctions, with costs of the application to abide the winner of the suit.

Key legal issues

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01

Whether the Applicants established a prima facie case

Holding

Yes - possession under title documents in the deceased's name shows a right threatened with violation

Reasoning

Both parties produced titles claiming ownership. The Applicants however showed possession of the suit property under title documents bearing the deceased's name. On the face of it they have a right of possession threatened with violation by the eviction notice. Forgery allegations could not be resolved at interlocutory stage.

p. 5
02

Whether the Applicants would suffer irreparable harm not compensable in damages

Holding

Yes - permanent structures on the land require preservation of the suit property in its current state

Reasoning

The Applicants demonstrated occupation since 1981 under title documents in the deceased's name and permanent structures on the land. The court found it imperative to preserve the property in its current state so parties could ventilate their claims; the 1st Defendant did not explain when he lost possession.

p. 5
03

Where the balance of convenience lies

Holding

It tilts in favour of the Applicants, who are in possession

Reasoning

The 1st Defendant cannot effect the eviction notice without a court order; even without injunction he would have to move the court appropriately. Preserving possession pending trial favours the Applicants, who are in occupation of the suit property.

p. 5

Legal principles established

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  • An applicant for an injunction need not establish title; it is enough to show a fair and bona fide question as to the existence of the right alleged, on a balance of probabilities
  • Where both parties hold competing titles, allegations of forgery cannot be resolved at the interlocutory stage

Court orders

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  1. 1.Temporary injunction against the 1st Defendant restraining him, his agents and/or servants from evicting the Plaintiffs from the suit property, demolishing development thereon, or interfering with their occupation of LR.no 36/11/24 pending hearing and final determination of the suit
  2. 2.Temporary injunction against the 2nd Defendant restraining him from registering any dealings and/or making any entries in respect of LR.no 36/11/24 without notice to the Plaintiffs and/or the Court pending hearing and final determination of the suit
  3. 3.Costs of the application to abide the winner of the suit

Authorities

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Legislation

  • Land Registration ActSection 25
  • Land Registration ActSection 26
  • Land Registration ActSection 24(a)
  • Civil Procedure RulesOrder 40 Rule (a)(b)

Cases cited (9)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358

    Threshold principles for grant of interlocutory injunctions

  • Mrao Ltd v First American Bank of Kenya Ltd & 2 Others
    [2003] KLR 125

    Definition of a prima facie case

  • Nguruman Limited v Jan Bonde Nielson & 2 Others
    [2014] eKLR

    Prima facie case standard and sequencing of Giella principles

  • Anthony Mbugua Njihia & 4 Others v Urithi Housing Cooperative Society Ltd & another
    [2019] eKLR

    Certificate of title is prima facie evidence of ownership

  • Margaret Njeri Muiruri (Being the Administrator of the Estate of Joseph Muiruri (Deceased)) v Bank of Baroda (Kenya) Ltd
    [2020] eKLR

    Land disputes evoke emotion; damages rarely adequate compensation

  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    (2018) eKLR

    Balance of convenience test

  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR

    Court should opt for the lower rather than higher risk of injustice

  • 4 Bulk Medicals Ltd v Paramount Universal Bank Ltd & 2 others
    [2006] eKLR

    Mrao definition of prima facie case cited with approval

  • Moses M Wairimu & 24 Others v Kenya Power & Lighting Co Ltd & Another
    [2020] eKLR

    Injunction cannot issue to prevent what has already happened; damages may compensate

Jurisdiction invoked
Article 162(2)(b) of the Constitution (Environment and Land Court) - original jurisdiction over land disputes

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, "Ngatho & another (Both Suing as Administrators of the Estate of Wanjiku Njau - Deceased) v Kigo & another", Case Analysis (2023). Environment & Land Case E389 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20170/eng@2023-09-28

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