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ELCPartially AllowedNyahururu ELC Case No. E008 of 2023 (interlocutory application in the appeal); notice of motion dated 03.10.2023· [2024] KEELC 807 (KLR)

LWG v BGG & 2 others (Environment and Land Appeal E001 of 2023) [2024] KEELC 807 (KLR)

Environment and Land Court
15 February 2024
1,998 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan land court froze dealings on disputed land for one year but refused to pause the ongoing case, telling the owner to pursue her suit quickly.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Nyandarua (Y. M. Angima, Judge) on a notice of motion dated 03.10.2023 by the Appellant, LWG, in her appeal against a trial court decision of 27.09.2023 dismissing her application for an interim injunction in Nyahururu CM ELC Case No. E008 of 2023, a matrimonial property claim over Title No. Nyandarua/Ol Joro Orok Salient/4360. She sought an inhibition under Section 68 of the Land Registration Act, 2012 and a stay of proceedings in her own suit pending the appeal. The 1st Respondent denied that the property was matrimonial property, asserting he acquired it in 1995 after separation; the 3rd Respondent said he bought it on 05.04.2023 at full price after leasing it for over 12 years without notice of the claim; the 2nd Respondent filed nothing. Applying the tests in Joseph Mumita Kipees, the court found a real risk of transfer to the 3rd Respondent or subsequent purchasers, that refusal could render the Appellant's claim nugatory, and that her claim was arguable; it therefore granted an inhibition for one year. However, it declined the stay of proceedings, holding that litigants must prosecute their suits expeditiously and should not park suits to pursue interlocutory appeals. Costs were ordered to be costs in the appeal. The motion partly succeeded and partly failed.

Key legal issues

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01

Whether an order of inhibition under Section 68(1) of the Land Registration Act, 2012 was warranted

Holding

The inhibition order was granted for one year to preserve the suit property pending the appeal

Reasoning

The court found a real risk of the suit property being transferred to the 3rd Respondent or subsequent purchasers since a sale agreement dated 05.04.2023 existed though no transfer was registered. Refusal might render the Appellant's main prayer in the pending suit nugatory, and her claim was not frivolous or fanciful. The court refrained from commenting on the merits of the contested matrimonial-property claim.

p. 4
02

Whether a stay of the Appellant's own suit pending the interlocutory appeal should be granted

Holding

Stay of proceedings declined; the Appellant directed to prosecute her suit expeditiously

Reasoning

The court found it strange that a litigant would seek to stay her own suit to pursue an interlocutory appeal on a discretionary interlocutory decision. Since inhibition was granted, preservation was achieved without paralysing the trial. Courts should not encourage litigants to park suits at first instance while chasing interlocutory appeals.

p. 4
03

Costs of the application

Holding

Costs in the appeal

Reasoning

Although costs follow the event under the proviso to Section 27 of the Civil Procedure Act, the appeal itself remained pending, so the court ordered costs of the application to abide the outcome of the appeal rather than award them to either side immediately.

p. 4

Legal principles established

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  • In an application for an order of inhibition under Section 68(1) of the Land Registration Act, the applicant must show that the suit property is at risk of alienation, that refusal would render the suit nugatory, and that the applicant has an arguable case.
  • A litigant should prosecute a claim expeditiously in line with the overriding objectives of the Civil Procedure Act rather than seek a stay of their own suit to pursue interlocutory appeals.
  • Costs follow the event under the proviso to Section 27 of the Civil Procedure Act unless the court directs otherwise.

Court orders

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  1. 1.An order of inhibition be and is hereby made under Section 68 of the Land Registration Act, 2012 to prevent any dealings with Title No. Nyandarua/Ol Joro Orok Salient/4360 for a period of one (1) year from the date hereof.
  2. 2.The prayer for stay of proceedings in Nyahururu ELC No. E008/2023 is declined and the Appellant is directed to expeditiously prosecute the said suit to its logical conclusion.
  3. 3.Costs of the application shall be costs in the appeal.

Authorities

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Legislation

  • Constitution of KenyaArticle 50(1)
  • Civil Procedure Act (Cap. 21)Sections 1A, 1B, 3A and 27
  • Civil Procedure RulesRule 22; Order 51 Rule 1
  • Land Registration Act, 2012Section 68(1)

Cases cited (3)

  • Dorcas Muthoni & 2 Others v Michael Ireri Ngari
    [2016] eKLR
  • Joseph Mumita Kipees (Suing as the legal representative of the estate of Moses Kisento) v Nteri Merik Obo Kipaika & 2 Others
    [2014] eKLR
  • Hussein Janmohamed & Sons v Twentsche Overseas Trading Co. Ltd
    [1967] EA 287
On appeal from
Nyahururu Chief Magistrate's Court (ELC)
ELC Case No. E008 of 2023, LWG -vs- BGG, the Land Registrar Nyahururu and Daniel Kiruri Kuruga
Jurisdiction invoked
Article 50(1) of the Constitution; Sections 1A, 1B & 3A of the Civil Procedure Act (Cap. 21); Rule 22 and Order 51 Rule 1 of the Civil Procedure Rules; Section 68 of the Land Registration Act, 2012

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, "LWG v BGG & 2 others (Environment and Land Appeal E001 of 2023) [2024] KEELC 807 (KLR)", Case Analysis (2024). Nyahururu ELC Case No. E008 of 2023 (interlocutory application in the appeal); notice of motion dated 03.10.2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/807/eng@2024-02-15

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