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ELCPartially AllowedELC Mombasa (Notice of Motion dated 25th March 2024 in pending suit)· [2024] KEELC 6769 (KLR)

Jusan Limited v Land Registrar, Mombasa & 3 others (Environment & Land Case E024 of 2024) [2024] KEELC 6769 (KLR)

Environment and Land Court
16 October 2024
2,213 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Land Court stopped the Land Registrar from cancelling auction-purchased titles, confirming you can go straight to court without first using official rectification procedures.

What this practically means

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Executive summary

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The plaintiff, through its director Mohamedraza S. Rashid, moved the court by notice of motion dated 25th March 2024 seeking a temporary injunction to restrain the 1st defendant (the Chief Land Registrar) from revoking the plaintiff's title to L.R No. 311/Section V/Mainland North and 402/Section V/Mainland North, and to restrain the 3rd and 4th defendants from interfering with the properties pending trial. The plaintiff bought the properties at a public auction by the Assistant Public Trustee in 1990 for Kshs 4,200,000 pursuant to a grant in Mombasa Succession Cause 788 of 1988, but a letter dated 24th August 2023 from the 1st defendant threatened expungement based on a later grant in Nairobi Succession Cause 948 of 1997 confirmed to the 3rd defendant and used to bequeath L.R 402 to the 4th defendant. The 1st and 2nd defendants opposed, arguing failure to exhaust rectification proceedings under the Land Registration Act and prematurity under section 9(2) of the Fair Administrative Action Act. The court found it had jurisdiction since the rectification provisions are not mandatory, found a prima facie case from inconsistencies between the grants and the certificates of title, and granted the temporary injunction against the 1st defendant only, refusing relief against the 3rd and 4th defendants. Costs were ordered to abide the outcome of the suit.

Key legal issues

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01

Whether failure to exhaust rectification proceedings under section 87 of the Land Registration Act and Regulation 91(1) and 93(1) of the Land Registration (General) Regulations 2017 ousts the court's jurisdiction

Holding

The court has jurisdiction; the rectification provisions are not couched in mandatory terms and exhaustion is not a condition precedent

Reasoning

The 1st and 2nd defendants raised exhaustion through grounds of opposition rather than a notice of preliminary objection, but the court held it must still consider jurisdiction. It found the rectification provisions are not framed in mandatory terms, unlike court-annexed mediation under Order 11 of the Civil Procedure Rules, so resort to them first is not compelled.

p. 3
02

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

Holding

Yes - the plaintiff narrated its purchase at a public auction, and the inconsistency between the grants and the certificates of title (with L.R 311/V/MN unlisted in the 2000 grant) raises serious questions for trial

Reasoning

The searches showed the 28th March 2000 order registered as an encumbrance, but the certificates of title showed no such encumbrance. L.R 311/V/MN was not listed in the 2000 grant. These conflicts between successive grants and the register raise matters to be determined at hearing, establishing a prima facie case.

p. 4
03

Whether irreparable injury and balance of convenience were demonstrated

Holding

Counsel did not address these limbs and no evidence (e.g. photographs) was offered, but the court found a reasonable case for an injunction against the 1st defendant to preserve the register

Reasoning

Counsel failed to submit on irreparable injury and balance of convenience, and no photographs of the properties were annexed. The court nonetheless exercised its discretion to preserve the status of the suit properties pending trial by restraining the 1st defendant from rectifying the register or expunging the plaintiff's titles.

p. 4

Legal principles established

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  • Rectification provisions under the Land Registration Act and its regulations are not mandatory so as to oust the court's jurisdiction where they are not first exhausted
  • In land matters status quo orders should always be issued to preserve the subject matter

Court orders

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  1. 1.Temporary injunction order against the 1st defendant in terms of prayer (4) granted, restraining revocation/expunging of the plaintiff's titles to the suit properties pending hearing and determination of the suit
  2. 2.Costs to abide the outcome of the suit

Authorities

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Legislation

  • Land Registration Actsection 76(2); section 87
  • Land Registration (General) Regulations, 2017regulation 91(1); regulation 93(1)
  • Fair Administrative Action Actsection 9(2)
  • Civil Procedure RulesOrder 11
  • Civil Procedure Act (Chapter 21, Laws of Kenya)section 27

Cases cited (5)

  • Owners of the Motor Vessel “Lilian S” v Caltex (Kenya) Ltd
    [1989] e KLR 1
  • Unilever Tea Kenya Limited v Andrew Cheruiyot Rotich & 3 Others
    (2020) eKLR
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] KEELC 2424 (KLR)
  • Joel Mugambi Mukira & 2 others (for and on behalf of Kimathi tenants welfare group) v County Government of Nyeri
    [2019] eKLR
  • Mugah -v- Kunga
    [1988] KLR 748
Jurisdiction invoked
Environment and Land Court jurisdiction over registered land (Land Registration Act); no specific constitutional provision cited

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, "Jusan Limited v Land Registrar, Mombasa & 3 others (Environment & Land Case E024 of 2024) [2024] KEELC 6769 (KLR)", Case Analysis (2024). ELC Mombasa (Notice of Motion dated 25th March 2024 in pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6769/eng@2024-10-16

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