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ELCPartially AllowedEnvironment & Land Case E022 of 2023· [2023] KEELC 20551 (KLR)

Masale v Zonga & another

Environment and Land Court
11 October 2023
2,308 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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A Kwale court froze all construction and land dealings on a disputed Diani Beach plot after two people produced valid-looking titles for the same property.

What this practically means

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Executive summary

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The plaintiff, Eliakim Milton Masale, moved the Environment and Land Court at Kwale by notice of motion dated 20/3/2023 under Order 40 Rules 1, 2, 2(4) and 4 of the Civil Procedure Rules and sections 1A, 3A and 63(e) of the Civil Procedure Act, seeking temporary injunctions restraining the defendants from entering upon, constructing on or dealing with Kwale/Diani Beach Block/670, and restraining further entries in the proprietorship register. He claimed to be the first allottee and registered owner, holding a title issued on 21/3/1995 flowing from the Settlement Fund Trustees, and alleged a fraudulent scheme to alter the property's registration, evidenced by unknown persons erecting a perimeter wall and by the disappearance of registry records. Omar Mbwana Zonga opposed, asserting his own lawful title issued on 29/10/2002 and denying forgery. Applying the Giella v Cassman Brown test as elaborated in Nguruman Limited v Jan Bonde Nielsen, the court found a prima facie case from the existence of two competing titles and the undisputed construction of a perimeter wall; found irreparable injury from the ongoing construction and the risk of loss of registry records; and held the balance of convenience favoured preservation of the property. The court issued injunctions against the 1st defendant and restrained further register entries by the 2nd defendant, ordered registration of an inhibition, and directed that costs abide the outcome of the suit.

Key legal issues

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01

Whether the applicant established a prima facie case

Holding

Yes - the existence of two competing titles and the respondent's undisputed construction of a perimeter wall established a prima facie case warranting injunction

Reasoning

The applicant held a title issued on 21/3/1995 with a 2020 search confirming registration, while the respondent's title was issued on 29/10/2002. With two competing titles and undisputed construction of a perimeter wall, the court found an apparent infringement of the applicant's rights and was satisfied a prima facie case existed, stressing preservation of the suit's substratum pending determination of title validity.

02

Whether the applicant demonstrated irreparable injury

Holding

Yes - the ongoing construction of a perimeter wall and the risk of disappearance of registry records demonstrated irreparable loss

Reasoning

The respondent's construction of a perimeter wall was treated as sufficient demonstration of irreparable loss. The court also noted allegations of disappearance of documents at the lands registry, evidenced by a gazette notice seeking to replace the land register and the applicant's letter that records could not be traced on search, justifying the applicant's anxiety.

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Where the balance of convenience lies

Holding

It tilts in favour of the applicant, as there is a lower risk of injustice in granting the orders than in refusing them

Reasoning

Guided by Amir Suleiman v Amboseli Resort Limited, the court adopted the principle of opting for the lower rather than the higher risk of injustice. Since ownership had not been determined and relevant documents on the double registration had not been interrogated, preserving the suit property pending full hearing was the lower-risk course.

p. 4

Legal principles established

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  • A prima facie case in a civil application is a genuine and arguable case showing an apparent infringement of a right calling for explanation or rebuttal
  • All three Giella conditions are separate, distinct and logical hurdles to be surmounted sequentially
  • Where two title deeds exist over one parcel, the court may grant injunctions to preserve the substratum of the suit pending full hearing

Court orders

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  1. 1.An order of injunction restraining the 1st defendant/respondent by himself, agents, servants, contractors or in any other manner howsoever from carrying on any construction or otherwise dealing or interfering with the property registered as Kwale/Diani Beach Block/670 pending the hearing and determination of this suit
  2. 2.The 2nd defendant be and is hereby restrained from making any further entries in the proprietorship register of the property Kwale/Diani Beach Block/670 to the Plaintiff's detriment pending the hearing and determination of this suit
  3. 3.The 2nd defendant shall register an order of inhibition against land parcel No. Kwale/Diani Beach Block/670 pending the hearing and determination of this suit
  4. 4.Costs will abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1, 2, 2(4), 4
  • Civil Procedure ActSections 1A, 3A, 63(e)

Cases cited (8)

  • Giella v Cassman Brown & Company Limited
    (1973) EA 358

    Conditions for granting an interlocutory injunction: prima facie case, irreparable injury, balance of convenience

  • American Cyanamid Co v Ethicom Limited
    (1975) A AER 504

    Serious/fair issue to be tried, damages not adequate remedy, balance of convenience

  • Mrao Ltd v First American Bank of Kenya and 2 others
    (2003) KLR 125

    Definition of a prima facie case in civil applications

  • Moses C Muhia Njoroge & 2 others v Jane W Lesaloi and 5 others
    (2014) eKLR

    Approval of the Mrao definition of prima facie case

  • Nguruman Limited v Jan Bonde Nielsen & 2 others
    CA No 77 of 2012

    All three injunction requirements must be satisfied sequentially

  • Kenya Commercial Finance Co Ltd v Afraha Education Society
    [2001] Vol 1 EA 86

    The three conditions as separate, distinct and logical hurdles

  • Amir Suleiman v Amboseli Resort Limited
    [2004] eKLR

    Balance of convenience - opting for the lower rather than higher risk of injustice

  • Robert Mugo Wa Karanja v Ecobank (Kenya) Limited & another
    [2019] eKLR

    Circumstances for a temporary injunction under Order 40 rule 1

Jurisdiction invoked
Order 40 Rules 1, 2, 2(4) of the Civil Procedure Rules; sections 1A, 3A and 63(e) of the Civil Procedure 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, "Masale v Zonga & another", Case Analysis (2023). Environment & Land Case E022 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/20551/eng@2023-10-11

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