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ELCPartially AllowedE182 OF 2023· [2024] KEELC 3954 (KLR)

Epco Builders Limited v Ndungu t/a Bhuta Enterprises & 2 others (Environment & Land Case E182 of 2023) [2024] KEELC 3954 (KLR)

Environment and Land Court
30 April 2024
EWE. K. Wabwoto
1,409 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Nairobi court froze all dealings in disputed land after discovering two valid-looking titles for the same parcel, until the true owner is determined at trial.

What this practically means

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Executive summary

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The Plaintiff, through a Notice of Motion dated 20th November 2023 supported by an affidavit of Ramji Varsani, sought temporary injunctions restraining the 1st Defendant from alienating, selling, charging, transferring or interfering with land parcel L.R. 21937 pending determination of the application and of the suit, with ancillary orders directing the OCS Langata Police Station to enforce compliance. The Plaintiff described itself as a bona fide purchaser for value and registered owner, having carried out due diligence and transferred the land on 6th May 2020, but was forcibly removed from the property by armed men claiming ownership. The 1st Defendant opposed, asserting he was the lawful proprietor under Grant No. LR 159434, that two parallel certificates of title existed so the vendor, Abdiwahab Abdullahii Ali, had no good title to pass, and that the Plaintiff had concealed a Deed of Settlement with the vendor for a refund. Justice E. K. Wabwoto framed a single issue: whether the application was merited. Applying Giella v Cassman Brown, Nguruman and Section 63 of the Civil Procedure Act with Order 40(1), the court found both parties claim the same parcel through separate grants (IR No. 203481/1 and IR No. 159434) traceable to the same vendor, raising genuine questions on the root of title suitable only for exhaustive trial. Preservation of the subject matter was held prudent. The application was allowed in terms of prayers 6 and 7, granting an injunction pending determination of the suit and police enforcement, with costs of the application to abide the main suit.

Key legal issues

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01

Whether the Plaintiff was entitled to a temporary injunction over LR 21937

Holding

Application allowed in terms of prayers 6 and 7; the existence of two parallel titles raised genuine issues on root of title fit for trial, warranting preservation of the subject matter by injunction pending determination of the suit

Reasoning

Both parties claim ownership of LR 21937 through separate grants (IR No. 203481/1 and IR No. 159434), each hinged on transactions with the same vendor, Abdiwahab Abdullahii Ali. The court applied the Giella v Cassman Brown principles and Order 40(1) CPA, finding the contest over root of title raises material questions that cannot be resolved on affidavit evidence. Preservation of the subject matter was deemed prudent and in the best interest of justice, so the injunction pending trial issued, with costs to abide the main suit.

p. 4

Legal principles established

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  • Where rival titles raise questions on the root of title, those questions must be tried exhaustively at trial and preservation of the subject matter at interlocutory stage is prudent

Court orders

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  1. 1.Temporary injunction restraining the 1st Defendant/Respondent, his servants, agents, employees and/or anyone claiming through him from alienating, offering for sale, selling, charging, transferring and/or interfering with the Plaintiff's ownership and peaceful and quiet occupation of land parcel Number L.R. 21937 pending hearing and determination of the suit (prayer 6)
  2. 2.Order directing the OCS Langata Police Station to enforce and ensure compliance with the injunction order (prayer 7)
  3. 3.Costs of the application to abide the determination of the main suit

Authorities

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Legislation

  • Civil Procedure ActSection 63
  • Civil Procedure RulesOrder 40(1)

Cases cited (3)

  • Giella v Cassman Brown & Co. Ltd.
    [1973] E.A 358
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR; Ca No. 77 Of 2012
  • Mrao Limited v First American Bank of Kenya Limited & 2 Others
    [2003] KLR 125
Jurisdiction invoked
Section 63 of the Civil Procedure Act and Order 40(1) of the Civil Procedure 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, "Epco Builders Limited v Ndungu t/a Bhuta Enterprises & 2 others (Environment & Land Case E182 of 2023) [2024] KEELC 3954 (KLR)", Case Analysis (2024). E182 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3954/eng@2024-04-30

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