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ELCDismissedNotice of Motion dated 29th August, 2023 (suit number not stated in judgment)· [2024] KEELC 1195 (KLR)

Rotich v Cheruiyot & 4 others (Environment & Land Case E006 of 2023) [2024] KEELC 1195 (KLR)

Environment and Land Court
7 March 2024
3,112 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A landowner lost his injunction bid after ignoring court directions on written submissions and failing to challenge a registered title with evidence of fraud.

What this practically means

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Executive summary

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The Applicant, Samuel Rotich, moved the Environment and Land Court at Naivasha by a Notice of Motion dated 29th August 2023 under Order 40(1) and Order 51(1) of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking temporary injunctions restraining the Respondents from interfering with his alleged ownership and occupation of Part B of Plot No. 38 (631/150B), now Kericho Municipality Block 2/143, and restraining the 4th Respondent from subdividing, re-planning or issuing titles over the suit properties. He claimed the parties had been allocated parcels in 1999 under an approved subdivision plan and that the Respondents had fraudulently altered boundaries to the benefit of the 2nd Respondent. The 2nd Respondent opposed, asserting it was the registered proprietor of the suit land and that the Applicant held no title, lacked locus standi, and relied on the indefeasibility provisions of the Land Registration Act. Directions were taken for written submissions; the 1st and 2nd Respondents complied but the Applicant did not. The court held that parties who fail to file submissions as ordered are deemed to have failed to prosecute their application, warranting dismissal, and invoked the Rowlands Ndegwa and Winnie Wanjiku Mwai authorities. In the alternative, on the merits, the court found that the 2nd Respondent's registered title under Sections 25 and 26(1) of the Land Registration Act was prima facie indefeasible and that the Applicant had not established a prima facie case; the other Giella conditions were not reached as they apply sequentially. The application dated 29th August 2023 was dismissed with costs to the 2nd Respondent, and parties were directed to comply with Order 11 within 21 days for the hearing of the main suit. Judgment was delivered on 7th March 2024 by M. C. Oundo, Environment and Land Judge.

Key legal issues

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01

Effect of non-compliance with directions to file written submissions

Holding

The Applicant's failure to file written submissions after the mode of hearing was chosen demonstrated inertia, inordinate delay and lack of interest, justifying dismissal of the application

Reasoning

The court noted that written submissions are the norm under the new constitutional dispensation and serve expedience. Once a mode of hearing is chosen by consent and adopted, non-compliance amounts to failure to prosecute. The Applicant was afforded an opportunity to be heard by written submissions and did not take it up, warranting dismissal for want of prosecution.

p. 4
02

Whether the Applicant established a prima facie case against the 2nd Respondent's registered title

Holding

The Applicant failed to establish a prima facie case because the 2nd Respondent held a registered certificate of title, prima facie indefeasible under Sections 25 and 26(1) of the Land Registration Act, and no evidence showed the title had been revoked or recalled

Reasoning

The suit land was registered to the 2nd Respondent on 13th July 2009 under the Land Registration Act. Section 25 confers rights free from other interests and claims, and Section 26(1) makes the certificate conclusive evidence of ownership subject only to fraud, misrepresentation, illegality, unprocedurality or corruption. The burden shifted to the Applicant, who provided no evidence of recall or revocation, though final determination awaits trial.

p. 6
03

Whether the remaining Giella conditions (irreparable damage and balance of convenience) required consideration

Holding

No, the conditions are sequential and failure of the first condition obviates consideration of the others

Reasoning

Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society as approved in Joseph Wambua Mulusya v David Kitu, the court held that the enquiry is sequential; where the prima facie case fails, there is no basis for an injunction unless the court entertains doubt on the first condition. Irreparable damage and balance of convenience were therefore not reached.

p. 6

Legal principles established

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  • Failure to file written submissions as directed by the court amounts to failure to prosecute the application, which is liable for dismissal
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, challengeable only on grounds of fraud, misrepresentation, illegality, unprocedural acquisition or corruption
  • The conditions for granting an interlocutory injunction are sequential; failure of the first (prima facie case) ends the enquiry

Court orders

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  1. 1.The application dated 29th August, 2023 is dismissed
  2. 2.Costs of the application are awarded to the 2nd Respondent
  3. 3.Parties to comply with the provisions of Order 11 of the Civil Procedure Rules within the next 21 days for the hearing of the main suit

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40(1), Order 51(1), Order 11
  • Civil Procedure ActSections 1A, 1B, 3A
  • Land Registration ActSections 25(1), 26(1), 28
  • Constitution of KenyaArticle 40(6)

Cases cited (9)

  • Francis Omondi Odhiambo v Hippolitus Omondi Ochieng
    [2022] eKLR
  • Ali Wanje Ziro v Abdulbasit Abeid Said & another
    [2022] eKLR
  • Evan Kidero v Speaker of National City County Assembly & Another
    [2018] eKLR
  • Giella v Cassman Brown & Company Ltd
    (1973) EA 358
  • Chebii Kipkoech v Barnabas Tuitoek Bargoria & Another
    [2019] eKLR
  • Rowlands Ndegwa and 4 Others vs. County Government of Nyeri and 3 Others; Agriculture, Fisheries and Food Authority & Another (Interested Parties)
    [2020] eKLR
  • Winnie Wanjiku Mwai vs. Attorney General & 3 Others
    [2016] eKLR
  • Kenya Commercial Finance Co. Ltd –vs- Afraha Education Society
    (2001) IEA 86
  • Joseph Wambua Mulusya –vs- David Kitu & Another
    (2014) eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 40(1) and Order 51(1) of the Civil Procedure Rules, 2010

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, "Rotich v Cheruiyot & 4 others (Environment & Land Case E006 of 2023) [2024] KEELC 1195 (KLR)", Case Analysis (2024). Notice of Motion dated 29th August, 2023 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/1195/eng@2024-03-07

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