Jusan Limited v Land Registrar, Mombasa & 3 others (Environment & Land Case E024 of 2024) [2024] KEELC 6769 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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
The court has jurisdiction; the rectification provisions are not couched in mandatory terms and exhaustion is not a condition precedent
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.
Whether the plaintiff established a prima facie case with a probability of success
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
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.
Whether irreparable injury and balance of convenience were demonstrated
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
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.
Legal principles established
#- 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
#- 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.Costs to abide the outcome of the suit
- Jurisdiction invoked
- Environment and Land Court jurisdiction over registered land (Land Registration Act); no specific constitutional provision cited
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.