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ELCPartially AllowedNot stated in the judgment (Notice of Motion dated 27th February, 2024)· [2024] KEELC 5470 (KLR)

Mbugua & 7 others v Agricultural Development Corporation & 8 others (Environment & Land Case 101 of 2024) (Environment and Land) [2024] KEELC 5470 (KLR)

Environment and Land Court
25 July 2024
MOM.C. Oundo
2,977 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 Kenyan court protected registered landowners from takeover by ordering everyone to keep the situation exactly as it was when the dispute began.

What this practically means

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Executive summary

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This was an unopposed Notice of Motion dated 27th February 2024, brought under Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act and Orders 40 and 51 of the Civil Procedure Rules, seeking interim injunctions restraining the 1st to 5th Respondents from entering, trespassing on, fencing or dealing with six parcels of land in the Ndabibi area (Plot Nos. 20591/117, 20591/98 & 99, 20591/116, 2059/118 EX ADC NDABIBI and L.R 7281/15 and 7281/13), and restraining the 6th to 8th Respondents from altering the relevant registry map or registering instruments over the suit properties. The Applicants, represented by the 2nd Applicant Godfrey Wainaina Chege, deponed that unknown individuals invaded the farm on 13th February 2024 and began erecting a fence, claiming the 1st Respondent had taken over the land, prompting a police report at Kongoni Police Station. The Respondents filed no response or submissions. Relying on Giella v Cassman Brown, Mrao v First American Bank, Nguruman v Jan Bonde Nielsen, Pius Kipchirchir Kogo and Paul Gitonga Wanjau, the court found the Applicants had established a prima facie case, being registered proprietors in occupation whose titles are protected under Section 26(1) of the Land Registration Act; that they would likely suffer irreparable harm given the actual invasion; and that the balance of convenience favoured preserving the status quo. Rather than granting the injunction in the exact terms prayed, the court interfered in a limited manner by defining the status quo: the Applicants remain in occupation as at the filing of suit, they shall not deal with the land adversely, the Respondents shall not interfere, the 6th to 8th Respondents shall not alter the map or register instruments, and the status quo holds until final determination. Costs of the application were ordered to be in the cause. Judgment delivered by M.C. Oundo, Environment and Land Judge, at Naivasha on 25th July 2024.

Key legal issues

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01

Whether the Applicants established a prima facie case with a probability of success

Holding

The Applicants, being registered proprietors with certificates of title and in occupation, established a prima facie case

Reasoning

The court considered sale agreements, payment receipts, land control consents, certificates of title, Section 26(1) of the Land Registration Act (indefeasibility of title), the Applicants' occupation of the suit properties and the unopposed nature of the application. It concluded that the Applicants demonstrated apparent ownership rights infringed by the Respondents' fencing and takeover activities, warranting an explanation from the Respondents.

p. 5
02

Whether the Applicants would suffer irreparable harm if the injunction was not granted

Holding

Given the actual invasion of the suit properties and erection of a fence, the Applicants were apprehensive of irreparable harm for which damages would not adequately compensate

Reasoning

The court noted the Respondents had actually invaded the land, threatened the Applicants' employees and begun erecting a fence. Relying on Nguruman and Pius Kipchirchir Kogo, it accepted that being dispossessed of land is an injury not readily measurable in damages, so the irreparable harm limb was satisfied.

p. 5
03

Where the balance of convenience lies

Holding

The balance of convenience tilted in favour of granting relief, with a lower risk in granting the temporary injunction, and the court ordered maintenance of a defined status quo

Reasoning

There was no contestation that the Applicants were in occupation. Allegations of fraud required interrogation of documents and hearing the Respondents' evidence at trial. The court, invoking Mugah v Kunga and Practice Direction No. 28(k) (Gazette Notice No. 5178/2014), defined the status quo: Applicants remain in occupation, no party adversely deals with the land, the Respondents desist from interference, and the 6th to 8th Respondents refrain from registering instruments over the suit parcels.

p. 5

Legal principles established

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  • A prima facie case in a civil application is a case which, on the material presented, discloses an apparently infringed right calling for an explanation or rebuttal from the opposite party
  • In land matters, status quo orders should always be issued for purposes of preserving the subject matter

Court orders

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  1. 1.An order of status quo is issued to be maintained by all parties, with the Applicants in occupation of the suit parcels as at the time of filing suit
  2. 2.The Applicants shall not deal with the said parcels of land adversely
  3. 3.There shall be no interference with the suit parcels by the Respondents
  4. 4.The 6th to 8th Respondents are restrained from altering and/or interfering with MAP/RIM S.A. 37/A. III. A. 9 [1331/1] contained in Folio No. 345, Register No. 39, and/or registering any instrument in favour of the 1st to 5th Respondents in respect of the suit parcels
  5. 5.Such status quo is to be maintained by all parties until the matter is finally heard and determined
  6. 6.The costs of the application dated 27th February, 2024 shall be in the cause

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3A, 63(e)
  • Civil Procedure RulesOrder 40 Rules 1(a) and (b); Order 51 Rule 1
  • Land Registration ActSection 26(1)
  • Constitution of KenyaArticle 40
  • Gazette Notice No. 5178/2014 Practice Direction No. 28(k)Practice Direction No. 28(k)

Cases cited (6)

  • Giella Vs. Cassman Brown
    (1973) EA 358
  • Mrao Ltd v First American Bank of Kenya Ltd & 2 others
    [2003] eKLR / (2003) KLR 125
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Nguruman Limited Vs. Jan Bonde Nielsen and 2 Others
    (2014) eKLR
  • Paul Gitonga Wanjau Vs Gathuthis Tea Factory Company Ltd & 2 others
    (2016) eKLR
  • Mugah –v- Kunga
    [1988] KLR 748
Jurisdiction invoked
Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Orders 40 Rule 1 and 51 Rule 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, "Mbugua & 7 others v Agricultural Development Corporation & 8 others (Environment & Land Case 101 of 2024)  (Environment and Land) [2024] KEELC 5470 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of Motion dated 27th February, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5470/eng@2024-07-25

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