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ELCPartially AllowedNot stated in judgment (Notice of Motion dated 12th March, 2024 in pending suit)· [2024] KEELC 6848 (KLR)

Muiruri & 2 others (Suing in their capacity as the Chairman, Vice Secretary and Treasurer of Neema Sisters Support Group) & another v Longechele & 2 others (Land Case E005 of 2024) [2024] KEELC 6848 (KLR)

Environment and Land Court
17 October 2024
MOM. C. Oundo
4,606 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~18 min to read original · ~4 min brief

The bottom line

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A Kenyan court declined a temporary injunction over Naivasha land because a registered buyer's title appeared valid, but froze all parties in place until trial.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Naivasha (M.C. Oundo, J) on the Plaintiffs/Applicants' Notice of Motion dated 12th March 2024 seeking a temporary injunction restraining the Defendants from interfering with land parcel Naivasha/Ol Jorai Phase II/495, now sub-divided into parcels 15836, 15837 and 15838. The Applicants claimed to be bona fide purchasers for value of 1½ acres from the late Elimah Jemsop Komen and her husband David Longeshele, both now deceased, and to have taken possession. They alleged that the 1st Defendant, son of the deceaseds, procured a title to the whole parcel and fraudulently sub-divided and sold portions to the 2nd and 3rd Defendants without their involvement, despite a nullification order in Nakuru CM Succession Cause No 131 of 2018. The 2nd Respondent opposed, contending he lawfully purchased 1 acre from the 1st Defendant, was duly registered as proprietor of parcel 15837 on 22nd March 2023, and holds an indefeasible certificate of lease; he also argued the nullification order was obtained by material non-disclosure. Applying the Giella v Cassman Brown conditions, the court applied Mrao's definition of a prima facie case and found that the 2nd Respondent's duly registered certificate, on its face properly acquired, meant the Applicants had not established a prima facie case. Relying on Kenya Commercial Finance Co Ltd v Afraha Education Society, the court held the Giella conditions are sequential and declined to consider the remaining limbs. However, exercising discretion under Mugah v Kunga and Practice Direction 28(k), the court ordered maintenance of a clearly defined status quo pending determination, directed compliance with Order 11 within 21 days, and made costs of the application costs in the cause.

Key legal issues

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01

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

Holding

No. The 2nd Respondent's registered title was prima facie valid, and the Applicants did not at the interlocutory stage demonstrate it was challengeable in law.

Reasoning

The court noted it could not finally determine title validity at the interlocutory stage, but the 2nd Respondent produced a certificate of lease showing registration on 22nd March 2023 under Section 25 of the Land Registration Act, making his title prima facie indefeasible. The burden shifted to the Applicants to show the title was challengeable, which they failed to do on the material presented.

p. 7
02

Whether the other Giella conditions (irreparable harm, balance of convenience) required consideration

Holding

No, the conditions are sequential; failure on the first condition ends the enquiry.

Reasoning

Relying on Kenya Commercial Finance Co. Ltd v Afraha Education Society as cited in Joseph Wambua Mulusya v David Kitu, the court held that the second condition is addressed only if the first is satisfied, and since no prima facie case was established, there was no basis to proceed further unless the court entertained doubt on the first condition.

p. 8
03

Whether any interim preservation order should issue

Holding

Yes, a defined status quo order preserving the position as at filing of the suit, to aid case management pending full hearing.

Reasoning

Because the 1st Defendant was in occupation of the suit property and an injunction as sought would effectively evict him prematurely, and the 2nd Defendant was prima facie the registered proprietor of one portion, the court exercised its discretion under Practice Direction 28(k) and Mugah v Kunga to define and order maintenance of the status quo until determination.

p. 8

Legal principles established

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  • The conditions for an interlocutory injunction in Giella v Cassman Brown are sequential; failure of the first condition disposes of the application
  • A certificate of title is prima facie evidence of absolute and indefeasible ownership, shifting the burden to a challenger
  • In land matters, status quo orders should be issued to preserve the subject matter pending trial

Court orders

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  1. 1.An order of status quo to be maintained by all parties, the 1st Defendant remaining in occupation of land Title No Naivasha Ol Jorai Phase II/495 now sub-divided into Naivasha Ol Jorai Phase II/15836, 15837, 15838 as at the time of filing the suit
  2. 2.No interference with land Title No Naivasha Ol Jorai Phase II/495 now sub-divided into Naivasha Ol Jorai Phase II/15836, 15837, 15838
  3. 3.Status quo to be maintained until the matter is finally heard and determined
  4. 4.Parties to set down the matter for hearing expeditiously by complying with Order 11 of the Civil Procedure Rules within 21 days of delivery of the ruling
  5. 5.Costs of the application dated 12th March, 2024 to be in the cause
Jurisdiction invoked
Article 162(2)(b) and 165(6) of the Constitution; Order 40 Rules 1 and 2 and Order 51 rule 1 of the Civil Procedure Rules; Sections 1A and 3A of the Civil Procedure Act

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, "Muiruri & 2 others (Suing in their capacity as the Chairman, Vice Secretary and Treasurer of Neema Sisters Support Group) & another v Longechele & 2 others (Land Case E005 of 2024) [2024] KEELC 6848 (KLR)", Case Analysis (2024). Not stated in judgment (Notice of Motion dated 12th March, 2024 in pending suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6848/eng@2024-10-17

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