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ELCPartially AllowedCivil Appeal E082 of 2021· [2023] KEELC 21536 (KLR)

Githuku v Kiambu Dandora Farmers Co Ltd & 3 others

Environment and Land Court at Nairobi
31 October 2023
3,580 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that a registered title beats a share certificate when deciding who gets protection while a land dispute is ongoing.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Nairobi against a ruling of Resident Magistrate S. Muchungi delivered on 17 September 2021, dismissing Josephine Waiyego Githuku's notice of motion dated 21 July 2021 seeking a temporary injunction over parcels LR 15400/73 and 15400/74 in Embakasi. The appellant, holder of a certificate of title to 15400/73, alleged trespass by Kiambu Dandora Farmers Co Ltd and Abdul Wamala, who claimed under the original parcel LR 11397/3. Applying the Giella v Cassman Brown principles, Omange J held the magistrate misdirected herself by failing to consider the import of section 26 of the Land Registration Act, which renders a certificate of title prima facie evidence of absolute and indefeasible ownership, particularly as against the 4th respondent who held only a share certificate. The court also found the magistrate erred in tilting the balance of convenience in favour of the 4th respondent on the basis of possession alone, without considering the effect of ongoing construction on the appellant's use of the property should she succeed. Noting that courts should be reluctant to promote demolition of buildings, the court found the appeal had merit, partially allowed it, and issued a temporary injunction restraining the respondents from selling or carrying out construction on the suit properties pending hearing and determination of Milimani CMCC (ELC) E084 of 2021. The court declined to order reinstatement or eviction, finding contested facts required determination at the main hearing. Each party was ordered to bear their own costs of the appeal.

Key legal issues

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01

Whether the appellant established a prima facie case warranting an interlocutory injunction

Holding

Yes - the magistrate misdirected herself by failing to consider the import of section 26 of the Land Registration Act regarding the appellant's certificate of title as against the 4th respondent who only had a share certificate

Reasoning

The trial magistrate held the appellant's title but found it cancelled by the National Land Commission, and declined to find the 4th defendant a trespasser. On appeal, the court held that at the interlocutory stage the magistrate was misdirected in failing to weigh the appellant's certificate of title, prima facie evidence of absolute and indefeasible ownership under section 26, against the 4th defendant's mere share certificate.

02

Whether irreparable harm had been proved

Holding

The trial court's finding that harm was not quantified was not the basis of the appeal's success; the court noted construction could affect the appellant's enjoyment of the property if the suit succeeded

Reasoning

The court cited the definition of irreparable injury as injury not adequately compensable in damages. It observed that although a building can be demolished, courts should be reluctant to promote demolition, as property may have passed to third parties by the time demolition occurs.

p. 6
03

Whether the balance of convenience was correctly assessed

Holding

No - the magistrate misdirected herself by tilting the balance in favour of the 4th defendant on the basis of possession alone

Reasoning

The magistrate failed to consider the appellant's title and the effect that construction works would have on her use of the property if the case were eventually decided in her favour. This constituted a misdirection justifying appellate interference with the discretionary ruling.

p. 6

Legal principles established

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  • A certificate of title under section 26 of the Land Registration Act is prima facie evidence of absolute and indefeasible ownership and must be considered at the interlocutory stage
  • Tilting the balance of convenience solely on the basis of possession, while ignoring the effect of ongoing construction on a titled proprietor, is a misdirection
  • On a first appeal the court must reconsider and evaluate the evidence and reach its own conclusions

Court orders

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  1. 1.An order of temporary injunction restraining the Respondents, their employees, servants, representatives or agents or any other person claiming under them from selling or carrying out any construction on Land Reference Number 15400/73 and 15400/74 situated in Embakasi District pending the hearing and determination of Milimani CMCC (ELC) E084 of 2021
  2. 2.Each party is to be their own costs for the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1 (a) and (b)
  • Land Registration Actsection 26
  • Land Registration Actsection 24

Cases cited (8)

  • Giella v Cassman Brown & Company Limited
    [1973] E.A. 358

    Principles for grant of interlocutory injunctions: prima facie case, irreparable injury, balance of convenience

  • Mrao Ltd v First American Bank of Kenya Ltd
    (2003) eKLR

    Definition of a prima facie case in civil matters

  • Abdalla Mohamed Abdalla v County Government of Mombasa

    Sections 24 of the Land Registration Act confer absolute and indefeasible title

  • Munyu Maina v Hiram Gathiha Maina
    (2013) eKLR

    Where a title is in contention, the proprietor must prove legality of how the title was acquired

  • Gitwany Investment Limited v Tajmal Ltd & 3 others
    (2006)

    Where two regularly issued titles contend, the first title prevails

  • Gitobu Imanyara & 2 Others v Attorney General
    [2016] eKLR

    Duty of a first appellate court to reconsider evidence and draw its own conclusions

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

    Definition of irreparable injury

  • Emco Billets and Steel v Kiambu Dandora Farmers Company Limited
    (2016) eKLR

    Until plaintiff's title is cancelled or revoked it remains valid; forceful taking of possession amounts to trespass

On appeal from
Chief Magistrate's Court at Milimani (Resident Magistrate)
Milimani CMCC (ELC) E084 of 2021
Jurisdiction invoked
First appeal from the subordinate court under the Civil Procedure Act and Rules

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, "Githuku v Kiambu Dandora Farmers Co Ltd & 3 others", Case Analysis (2023). Civil Appeal E082 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21536/eng@2023-10-31

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